Our Terms of Business
Please read these Terms of Business carefully, as they set out our and your legal rights and obligations in relation to our services.
1. Definitions and interpretation
1.1 In these Terms of Business:
“Business Day” means any week day, other than a bank or public holiday in England;
“Business Hours” means between 09:00 and 17:30 on a Business Day;
“Charges” means the Designer’s (Nucleus Limited) Hourly Rate multiplied by the number of person-hours spent by the Designer’s personnel performing the Services payable by the client to the Nucleus Limited, which may be varied from time to time in accordance with Clause [8.7];
“Contract” means a contract entered into pursuant to these terms and conditions, as evidenced by:
(i) the existence of a signed Estimate (ii) a purchase order or sales order which may or may not reference the Estimate, signed or unsigned; or (iii) the parties general course of dealing;
“Confidential Information” means:
(a) any information supplied by one party to the other party (whether supplied in writing, orally or otherwise) marked as “confidential”, described as “confidential” or reasonably understood to be confidential; and
(b) the terms (but not the existence) of each Engagement (which information is confidential to each party);
“Client” means the client for Services under an Engagement as specified in the Specification;
“Client Materials” means all works and materials provided by or on behalf of the client to the Designer for use in the production of, or incorporation into, the Deliverables;
“Deliverables” means the deliverables specified in the Specification;
“Designer” means Nucleus Limited, a limited company incorporated in England and Wales (registration number 5871801) having its registered office at Alexandra Business Centre, Fishermans, Wharf, Great Grimsby, North East Lincolnshire DN31 1UL;
“Effective Date” means the date specified as such in the Specification / means, in relation to an Engagement.
“Engagement” means a Contract between the Designer (Nucleus Ltd) and the client for the supply of Services and the delivery of Deliverables incorporating these Terms of Business and a Specification, and any amendments to such a contract from time to time;
“Estimate” means the document evidencing the Contract, in particular, details of what is being supplied, the Charges and Payment Terms.
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Hourly Rate” means the Designer’s standard hourly labour rate as notified by the Designer to the client;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, moral rights, database rights, business names, trade names, trade marks, service marks, passing off rights and rights in designs);
“Services” means the graphic design, marketing services supplied by the Nucleus Limited to the client under an Engagement, details of which are set out in the Specification/Plan (or, if no such details are set out in the Specification, details of which will be agreed between the parties acting reasonably from time to time);
“Specification” means the specification of services document issued by the Nucleus Limited to the client and signed by or on behalf of each party detailing the scope of the Services and other matters relating to an Engagement; and
“Term” means the term of an Engagement.
1. In these terms and conditions:
1.1 In these Terms of Business, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of these Terms of Business.
1.4 In these Terms of Business, “persons” include companies, partnerships, limited liability partnerships, unincorporated associations and trusts.
2.1 Each Engagement will come into force on its Effective Date and will continue in force until the Services agreed in the Specification have been completed, upon which it will terminate automatically (unless previously terminated in accordance with Clause ).
2.2 The parties from time to time shall enter into Engagements/Contracts which will constitute separate contractual agreements.
2.3 Each Contract shall be governed by the terms and conditions set out in the Engagement/Contract.
2.4 The terms and conditions set out in this Part A shall apply to every Contract.
2.5 If the Contract encompasses the supply of:
2.5.1 Development Services, the additional terms and conditions set out in Part B of these terms and conditions shall also apply;
Creative Services, the additional terms and conditions set out in Part C of these terms and conditions shall also apply;
2.5.3 Other Services, the additional terms and conditions set out in Part D.
2.6 If there is any conflict between the provisions of this Part A and those of Parts B through D, the provisions of this Part A shall prevail.
3.1 The Designer will supply the Services to the client and deliver the Deliverables to the client in accordance with the terms of each Engagement.
3.2 Any stated or agreed time for delivery of the Deliverables will not be of the essence of the parties’ agreement.
3.3 The Designer may sub-contract the provision of the Services without the prior written consent of the client; providing that if the Designer does sub-contract the provision of Services, the Designer will remain liable to the client for the performance of the sub-contracted obligations.
3.4 The Designer may suspend the provision of the Services and/or withhold the Deliverables if the client fails to pay by the due date any amount to the Designer due in respect of an Engagement.
4. client obligations
4.1 The client will promptly provide to, or procure for, the Designer any:
(a) co-operation, support and advice;
(b) designs, drawings, files, information and documentation;
(c) third party co-operation; and
(d) governmental, legal or regulatory licences, consents or permits;
reasonably necessary to enable the Designer to discharge its obligations under any Engagement.
4.2 The client must provide feedback on preparatory design work promptly, and in any event in accordance with any timetable agreed between the parties.
4.3 The client grants to the Designer a worldwide, royalty-free, non-exclusive licence to use the client Materials during the term of an Engagement solely for the purposes of that Engagement.
4.4 The client warrants and represents that the client Materials, and their use by the Designer in accordance with these Terms of Business, will not infringe the Intellectual Property Rights or other rights of any person, will not be illegal or unlawful under any applicable law, and will not give rise to any cause of action against the Designer or any other person in any jurisdiction.
4.5 The client hereby indemnifies and undertakes to keep indemnified the Designer against any losses, damages, claims, obligations, liabilities, costs and expenses (including legal fees and costs and expenses incurred in investigating, preparing, defending or prosecuting any litigation, claim, proceeding or demand) arising out of or in connection with any breach by the client of the warranty in Clause [4.4].
Unless otherwise specified in the terms and conditions of engagement/contract:
time for performance of the Contract shall not be of the essence, which shall not be made so by the service of any notice.
the Contract shall be performed during Normal Working Hours.
6. Licence of rights (where applicable and specified)
6.1 Upon the later of:
(a) the completion of the Services under an Engagement; and
(b) the payment by the client to the Nucleus Limited in full in cleared funds of all amounts due in respect of an Engagement, Nucleus Limited will grant to the client a [worldwide, [non-]exclusive] licence [for [the full term of copyright]] to [specify scope of licence], subject to Clause [6.2].
6.2 The licence granted in Clause [6.1] does not include the rights to [specify limitations on licence].
6.1 Upon the later of:
(a) the completion of the Services under an Engagement; and
(b) the payment by the client to Nucleus Limited in full in cleared funds of all amounts due in respect of an Engagement, Nucleus Limited will assign to the client all of its / the existing and future Intellectual Property Rights in the Deliverables (excluding the client Materials).
6.2 The assignment in Clause [6.1];
(a) is for the full term of those Intellectual Property Rights, including all extensions, renewals, reversions, and revivals; and
(b) includes the right to bring proceedings for the any infringement of those Intellectual Property Rights pre-dating their assignment.
7. Intellectual Property Rights warranty and indemnity
7.1 Unless otherwise provided for in the Contract, all Intellectual Property Rights created or arising under the Engagement/Contract shall vest absolutely in Nucleus Limited.
7.1.2 The Designer warrants that the Deliverables (excluding the client Materials) will not infringe the UK Intellectual Property Rights of any third party.
7.2 Subject to the client’s compliance with Clause [7.3], the Designer hereby indemnifies and undertakes to keep indemnified the client against any losses, damages, claims, obligations, liabilities, costs and expenses (including legal fees and costs and expenses incurred in investigating, preparing, defending or prosecuting any litigation, claim, proceeding or demand) arising out of or in connection with any breach by the Designer of the warranty in Clause [7.1].
7.3 The client will:
(a) upon becoming aware of an actual or potential infringement, notify the Designer;
(b) provide to the Designer all reasonable assistance in relation to the infringement;
(c) allow the Designer the exclusive conduct of all disputes, proceedings, negotiations and settlements related to the infringement; and
(d) not admit liability in connection with the infringement or settle any claim without the prior written consent of the Designer.
8. Charges and payment
8.1 The client will pay the Charges to the Designer in accordance with the provisions of this Clause .
8.1 .1 Unless the Charges are specified in the Estimate as being fixed, they shall be treated as an estimate only. The actual Charges shall be calculated on a time and materials basis with reference to the Contract Hourly Rate and any other hourly or daily rates which are referenced in the Estimate.
8.1.2 The Charges shall be no less than the Charges which are specified in the Estimate. Invoices shall be raised and Charges paid in accordance with the Payment Terms.
8.2 The Designer may issue an invoice for the Charges to the client from time to time during the Term / on or after the dates set out in the Specification / at any time after the relevant Services have been delivered to the client.
(a) In the absence of any Payment Terms, Nucleus Limited may issue invoices for payment of the Charges with (up to) 50% due on commencement of the project, (if so then) a further 25% at an agreed stage (equal to 75% of the project being complete) and the remainder upon the agreed completion date of the Contract. Such invoices shall be payable by the Client within thirty (30) days of the date of invoice.
8.3.1 The client will pay the Charges to the Designer within 30 days of the date of issue of an invoice issued in accordance with Clause [8.2]. Time for payment of the Charges shall be of the essence.
8.3.2 The client shall make all payments due under the Contract, in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the client has a valid court order requiring an amount equal to such deduction to be paid by Nucleus Limited to the Client.
8.4 All amounts stated in the Specification or in relation to an Engagement are exclusive of all value-added taxes, expenses, import or export duties which will be added to those amounts and payable by the client to the Designer.
8.5 Charges must be paid by debit or credit card, bank transfer or by cheque (using such payment details as are notified by the Nucleus Limited to the client in the invoice(s) / or from time to time).
8.6 If the client does not pay any amount properly due to Nucleus Limited in connection with any Engagement (no payment shall be deemed to have been received until Nucleus Limited has received cleared funds), then Nucleus Limited may:
(a) charge the client interest on the overdue amount at the rate of % per year above the base rate of Barclays Bank Plc from time to time (which interest will accrue daily until the date of actual payment and be compounded quarterly); or
(b) claim interest and statutory compensation from the client pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
8.7 The Designer may elect to vary the Charges (or Hourly Rate) by giving to the client not less than 30 days’ written notice of the variation expiring on any anniversary of the Effective Date of the relevant Engagement, providing that any such variation shall not result in the Charges (or Hourly Rate) increasing by more than the increase, during the 12 month period immediately preceding the notice of variation.
9.1 The client warrants to the Designer that it has the legal right and authority to enter into and perform its obligations required by each Engagement.
9.2 The Designer warrants to the client that:
(a) it has the legal right and authority to enter into and perform its obligations required by each Engagement.
(b) the Services will be performed with reasonable care and skill.
9.3 All of the parties’ liabilities and obligations in respect of the subject matter of the these Terms of Business are expressly set out in these Terms of Business. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of these Terms of Business will be implied into these Terms of Business, any Engagement, or any related contract.
10. Limitations of liability
10.1 Nothing in these Terms of Business will exclude or limit the liability of either party for:
(a) death or personal injury caused by that party’s negligence;
(b) fraud or fraudulent misrepresentation on the part of that party; or
(c) any other liability which may not be excluded or limited under applicable law.
10.2 Subject to Clause [10.1] and without prejudice to the express indemnities in these Terms of Business, the Designer’s liability to the client under or in connection with these Terms of Business, any Engagement, or any collateral contract, whether in contract or tort (including negligence), will be limited as follows:
(a) the Designer will not be liable for any:
(i) loss of profits, income or anticipated savings;
(ii) loss or corruption of any data, database or software;
(iii) reputational damage or damage to goodwill;
(iv) loss of any commercial opportunity; or
(v) indirect or consequential loss or damage;
(b) the Designer will not be liable for any losses arising out of a Force Majeure Event;
(c) the Designer’s liability in relation to any event or series of related events will not exceed the greater of:
(i) £50; and
(ii) the total amount paid or (if greater) payable by the client to the Designer under the relevant Engagement.
11.1 Each party will keep confidential the Confidential Information of the other party, and will not disclose that Confidential Information except as expressly permitted by this Clause . (For the purposes of this Clause , the terms of an Engagement constitute the Confidential Information of each party.)
11.2 Each party will protect the confidentiality of the Confidential Information of the other party using at least reasonable security measures.
11.3 The Confidential Information of a party may be disclosed by the other party to its employees, sub-contractors and professional advisers, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information.
11.4 These obligations of confidentiality will not apply to Confidential Information that:
(a) has been published or is known to the public (other than as a result of a breach of these Terms of Business);
(b) is known to the receiving party, and can be shown by the receiving party to have been known to it, before disclosure by the other party; or
(c) is required to be disclosed by law, or by an order (binding upon the relevant party) of a governmental authority, a regulatory body or a stock exchange.
12. Force Majeure Event
Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations required by any Engagement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.
13.1 Either party may terminate an Engagement at any time by giving at least 30 /written notice to the other party.
13.2 Either party may terminate an Engagement immediately by giving written notice to the other party if the other party:
(a) commits any breach of any provision of these Terms of Business or the relevant Specification, and:
(i) the breach is not remediable; or
(ii) the breach is remediable, but other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or
[(b) persistently breaches these Terms of Business and/or the relevant Specification.
13.3 Either party may terminate an Engagement immediately by giving written notice to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party required by the Engagement);
(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
13.4 The Designer may terminate an Engagement immediately at any time by giving written notice to the client if the client fails to pay in full and on time any amount due to the Designer whether due in respect of that Engagement or otherwise.
14. Effects of termination
14.1 Upon termination of an Engagement all the provisions of these Terms of Business and the Specification will cease to have effect, save that the following provisions of these Terms of Business will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 4.5, 7.2, 7.3, 8.6, 8.7, 8.8, 10, 11, 14, 15 and 17].
14.2 Termination of an Engagement will not affect either party’s accrued rights (including accrued rights to be paid) as at the date of termination.
15. Non-solicitation, assignment and sub-contracting
15.1 The client will not without the Designer’s prior written consent, either during the term of any Engagement or within 12 months after the date of effective termination of the most recent Engagement, engage, employ or otherwise solicit for employment any employee or contractor of Nucleus Limited who has been involved in the Engagement or the performance of the Services.
15.2 The Client shall not assign or deal in any way with all or any part of the benefit of, or its rights or benefits under the Engagement/Contract without the prior written consent of Nucleus Limited.
15.3 Nucleus Limited shall have the right to sub-contract the performance of the Engagement/Contract to any third party.
16.1 Any notice given under these Terms of Business must be in writing (whether or not described as “written notice” in these Terms of Business) and must be delivered personally, sent by pre-paid first class post, or sent by fax [or email], for the attention of the relevant person, and to the relevant address, fax number or [email address] given below (in the case of the Designer) or in the Specification (in the case of the client) – or as notified by one party to the other in accordance with this Clause.
[16.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):
(a) where the notice is delivered personally, at the time of delivery;
(b) where the notice sent by first class post, [48 hours] after posting; and
(c) where the notice sent by fax [or email], at the time of the transmission (providing the sending party retains written evidence of the transmission).]
17.1 No breach of any term of any Engagement/Contract will be waived except with the express written consent of the party not in breach.
17.2 If a term of any Engagement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other terms of the Engagement will continue in effect. If any unlawful and/or unenforceable term would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the term will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant term will be deemed to be deleted).
17.3 No Engagement will constitute a partnership, agency relationship or contract of employment between the parties.
17.4 Neither these Terms of Business nor any Specification may be varied except by a written document signed by or on behalf of each of the parties.
17.5 The Designer may freely assign its rights and obligations under any Engagement without the client’s consent. Save as expressly provided in this Clause or elsewhere in these Terms of Business, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in any rights or obligations under any Engagement.
17.6 Each Engagement is entered into for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement relating to any Engagement are not subject to the consent of any third party.
17.7 Subject to Clause [10.1]:
(a) these Terms of Business and the relevant Specification will constitute the entire agreement between the parties in relation to an Engagement, and supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter; and
(b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into an Engagement.
17.8 These Terms of Business and each Specification will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with any Engagement/Contract.
PART B – DEVELOPMENT SERVICES
1.1 In consideration for payment of the Charges, Nucleus Limited shall supply the Development Services.
2. SOLUTION DESCRIPTION
2.1 The Client acknowledges that:
2.1.1 the Solution Description, accurately reflects what is to be developed by Nucleus Limited and
2.1.2 the Solution shall be based entirely upon the Solution Description and that any changes must be communicated and agreed.
3.1 If at any time the Client wishes to alter all or any part of the Solution then the Client shall provide Nucleus Limited with full written breakdown of such alterations and with such further information as Nucleus Limited may reasonably require.
3.2 Nucleus Limited shall then submit to the Client as soon as reasonably possible a full written estimate for such alterations specifying what changes (if any) will be required to the Charges and the Solution Description.
3.3 Upon receipt of such estimate the Client may elect either:
3.3.1 to accept such estimate in which case the Contract shall be amended in accordance therewith; or
3.3.2 to withdraw the proposed alterations in which case the Contract shall continue in force unchanged, subject to condition 3.4.
If the Client’s request for such alterations is subsequently withdrawn but results in a delay in the performance of the Development Services, Nucleus Limited shall not be liable for such delay and shall be entitled to an extension of time for performing its obligations equal to the period of the delay.
PART C – CREATIVE / PR SERVICES
1.1 In consideration for payment of the Charges, Nucleus Limited shall supply the Creative Services.
2. FINAL PROOF AND SIGN OFF
2.1 If Nucleus Limited is reasonably satisfied that the Digital Artwork materially corresponds with the Design Brief, it shall deliver the Final Proof to the Client. Within a reasonable time period, the Client shall satisfy itself whether or not the Final Proof materially complies with the Design Brief.
2.2 If the Client informs Nucleus Limited that it believes the Final Proof does not materially comply with the Design Brief, Nucleus Limited shall take whatever steps are necessary to remedy such non-compliances in a timely manner.
2.3 If the Final Proof is deemed by the Client to materially comply with the Design Brief, the Client shall (using the sign off form supplied by Nucleus Limited “sign off” the Digital Artwork as complete, in which case, Nucleus Limited shall:
2.3.1 deliver the Digital Artwork to the Client;
2.3.2 arrange for the Marketing Materials to be printed in accordance with condition 5 below.
2.4 If the Client fails to inform Nucleus Limited of any non-compliance of the Final Proof with the Design Brief, the Final Proof shall be deemed to materially comply with the Design Brief, in which case it shall be “signed off” as complete.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 Nucleus Limited can (subject to the agreement of contract and/or the provisions of condition 7 above) assign to the Client with full title guarantee, all Intellectual Property Rights in the Solution. Such assignment shall only be effective, once all Charges have been paid for in full by the Client.
3.2 To the extent that the Solution comprises Nucleus Limited Materials or Third Party Materials no Intellectual Property Rights in such Nucleus Limited Materials or Third Party Materials shall be transferred to the Client.
3.3 The Client grants to Nucleus Limited a non-exclusive, perpetual, royalty free right and licence to commercial exploit the Solution for any commercial purpose.
3.4 Nucleus Limited shall not be obliged to consider or make any alterations to the Solution save in accordance with the aforesaid procedure.
4. PRINTING OF MARKETING MATERIALS
4.1 Nucleus Limited shall produce the Marketing Materials, materially in accordance with the Printing Brief.
4.2 For the avoidance of doubt, Nucleus Limited shall not commence the production of the Marketing Materials in the absence of a “sign off” form.
4.3 Nucleus Limited does not warrant, guarantee or make any representations regarding the functionality or application in terms of their correctness, accuracy, reliability, quality, or fitness for a particular purpose or otherwise.
PART D – TERM / HOSTING
1.1 If any Services comprise a Term, the terms and conditions set out in this condition 1 shall apply.
1.2 The Services shall commence upon the signature of the Estimate and shall continue for the Term.
1.3 Upon expiry of any pre-defined Term, any Other Services shall continue (subject to earlier termination in accordance with the Contract) for further terms of one (1) year duration (“Subsequent Terms”), unless either party shall give to the other at least sixty (60) days notice to terminate, prior to the expiry of the Term or any of the Subsequent Terms.
1.4 Nucleus Limited shall have the right to increase the Charges with effect from the anniversary of the commencement of the Term or Subsequent Terms. Such increase shall be notified to the Client at least thirty (30) days prior to the expiry of the Term or Subsequent Terms.