Standard Terms and Conditions
Welcome to Bird
1.1. Your relationship with us will be subject to these terms and conditions. Some of the words in the terms and conditions have specific meanings:-
1.1.1. “Client” “You” or “Your” means the person, firm or company shown in the Quote with whom the Contract is made;
1.1.2. “Contract” means the agreement made between Bird and the Client as set out in these terms and conditions;
1.1.3. “Bird” or “Us” means Bird Marketing and Design Consultancy LTD (company number 09474409) trading as Bird whose registered office is at Cotton Court, Church Street, Preston, PR1 3BY and their employees, agents and assigns;
1.1.4. ”Deliverables” means the goods and works of authorship designed developed written or prepared by Bird and provided to the Client during the course of the Services;
1.1.5. “Estimate” or “Quote” means the written cost quotation provided to You by Bird;
1.1.6. “Fee” means the amount payable to Bird by the Client in respect of the Services as further detailed at clause 2 below;
1.1.7. “Intellectual Property Rights” means all patents, rights to inventions, utility models copyright and related rights trade marks trade business and domain names rights in trade dress or get-up rights in goodwill or to sue for passing off unfair competition rights, rights in designs rights in computer software database rights topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights in each case whether registered or unregistered and including all applications for an renewals of or extensions of such rights and all similar or equivalent rights or forms of protection in any part of the world;
1.1.8. “Purchase Order” means the Client’s purchase order as approved in writing;
1.1.9. “Services” means the creative, design, branding and advertising services to be provided by Bird to the Client in accordance with the Contract;
1.2. The Client acknowledges that it enters into the Contract in the course of its business and not as a consumer.
1.3. These Conditions shall apply to the Contract except where otherwise agreed by Bird in writing.
1.4. Any terms of business offered by or on behalf of the Client shall be accepted on a case by case basis.
2. FEE, QUOTES AND PRICES
2.1. The Fee shall be as stated in Bird’s Quote.
2.2. The amount stated in any Quote given by Bird shall remain valid for a period of thirty (30) days from the date of the estimate and if Bird does not receive either i) a Purchase Order for the Services; or ii) [written] instructions to proceed with the Services within this period the quote shall be deemed to be automatically withdrawn.
2.3. Immediately upon the occurrence of either i) receipt by Bird of a Purchase Order from You; or ii) receipt of written (which includes email) instructions from you to proceed with the Services, a Contract shall be deemed entered into between You and Bird .
2.4. Where the Client:-
2.4.1. requests changes to the Services;
2.4.2. requests alterations to the Deliverables ;
2.4.3. requests additional proofs and mock ups;
2.4.4. fails to provide the materials required to provide the Services;
2.4.5. fails to provide adequate instructions or information required to provide the Services;
2.4.6. does not permit sufficient time for the Services to be completed during normal working hours i.e. 9am –5.30pm Monday – Friday; then Bird shall be entitled to increase the Fee to reflect the additional work required by giving notice to the Client at any time before delivery of the Deliverables.
2.5. Bird reserves the right to sub-contract work and where any Quote given includes an estimate in respect of the costs of a sub-contractor such quote whilst given in good faith is subject to amendment and will not be binding until confirmed in writing (including email) by Bird .
2.6. These terms and conditions and any Quote or Purchase Order may be amended only by agreement in writing by Bird and any costs incurred by Bird in connection with such amendment or cancellation may be charged to the Client.
2.7. The Client agrees that if requested by Bird it shall pay for all work carried out at the Client’s request including work carried out for an initial pitch.
3.1. Time of delivery shall not be of the essence.
3.2. Any delivery date specified is a genuine forecast but shall be subject to extension to cover delays caused by events beyond Bird’s control.
3.3. Where at the request of the Client Bird is asked to forward Deliverables by post, courier, rail carrier or any other means the Client agrees to pay an appropriate charge for this service.
3.4. Whilst every reasonable care will be taken in the dispatch of the Deliverables, no claims will be accepted by Bird in the event of damage to or non-delivery or late delivery of Deliverables by whichever means of transport have been used once the Deliverables have left the premises of Bird.
3.5. Any additional work to replace lost or damaged Deliverables where such loss or damage is not due to Bird’s negligence will be charged to the Client.
4. TERMS OF PAYMENT
4.1. All invoices are due immediately and payable within 30 days of the invoice date.
4.2. Bird reserves the right to charge and be paid interest on all sums due from the Client at the rate of 4% above Natwest base lending rate from the date upon which payment is due until the date upon which it is received as well as after judgement.
4.3. Invoices are payable in full and the Client shall not be entitled to withhold or set-off payment or make any counterclaim.
4.4. The time of payment shall be of the essence.
4.5. Dishonoured cheques will be charged at £35.00 per representation.
5. DEFECTS IN THE DELIVERABLES
5.1. The terms of this clause 5 will apply to all Deliverables supplied by Bird whether the copy, artwork digital or other media has been created by Bird or a third party or the Client has supplied the same.
5.2. Subject to the terms of clause 5.3 below the Client shall approve and sign off all proofs, films, digital or other media immediately upon receipt.
5.3. The Client shall be entitled to request up to two (2) amendments to Deliverables supplied for approval. Amendments requested by the Client in addition to the two (2) permitted will be charged to the Client in accordance with the rates prevailing on Bird’s current rate card.
5.4. Bird shall not be liable for any defects in the Deliverables beyond Bird’s reasonable control.
5.5. If the Client believes that the Deliverables do not conform to the Purchase Order whether as to content or quality or quantity it shall notify Bird by post or email within five (5) working days of delivery. If no such notification is received then the Deliverables shall be deemed to be accepted by the Client and to conform to the Purchase Order in every respect.
5.6. Bird’s liability for defects in the Deliverables caused by the negligence of Bird shall be limited to the replacement of the Deliverables at no additional cost to the Client provided that such defect is notified in accordance with clause 5.5 above and the Deliverables have been returned by the Client for inspection by Bird.
5.7. In any event the total liability of Bird for defects or errors in the Deliverables shall be limited to a sum equivalent to the invoice price of the Deliverables in respect of which any claim is made.
5.8. Where a complaint or a claim has been made in respect of Deliverables alleged to be defective Bird may suspend further deliveries of any Deliverables under this Contract which may have the same or similar alleged defects until the validity of such complaint or claim has been finally determined and in such event the applicable delivery dates shall be postponed accordingly.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. During the Contract unless otherwise expressly provided by the terms of clause 6.3 below the:-
6.1.1. Intellectual Property Rights in the Deliverables shall belong to Bird and shall be licensed to the Client as provided at clause 6.1.2 below;
6.1.2. Contract shall operate as a license for the Client to use the Deliverables until the date payment is due and provided that Bird receives payment of the Fee in full in accordance with the terms of clause 4 above this Contract shall operate as an automatic license for the Client to continue to use the Deliverables and the Intellectual Property Rights subject to the terms of this Contract.
6.2. All licenses granted to the Client by Bird are conditional on the Deliverables and the Intellectual Property Rights in them being used only for the purposes agreed in the Contract and the Client hereby undertakes and agrees to promptly notify Bird in order to obtain its approval (which shall not be unreasonably withheld or delayed) to use the Deliverables and/or any Intellectual Property Rights in them for any additional purpose including but not limited to reuse, re-print or duplication and the Client further agrees to pay Birdthe appropriate fee for such additional use as listed in Bird’s rate card current at that time.
6.3. Where expressly stated in the Quote, the Client may acquire the Intellectual Property Rights in such of the Deliverables which are specifically created for the Client under the Contract;
6.4. In the event that an assignment of Intellectual Property Rights in the terms stated at clause 6.3 above is agreed then subject to full payment of the Fee on of before the due date:
6.4.1. The Client shall acquire ownership of the Intellectual Property Rights in the Deliverables which are specifically created by Bird for the Client immediately upon full payment of the Fee;
6.4.2. for the avoidance of doubt, the Client shall not acquire ownership of any underlying material or software used by Bird in the performance of the Services and in respect of which the Intellectual Property Rights are at the Contract date or at any time thereafter owned by Bird or any third party;
6.5. In the event that the Client fails to pay the Contract fee in full on the due date in accordance with the provisions of clause 4 above then the license to use the Deliverables shall immediately terminate and all rights shall revert back to and be the property of Bird .
6.6. The provisions of clause 6.5 above shall be without prejudice to any claim which Bird may have against the Client for non-payment of the Fee or any part of it.
7. LIBELLOUS/ILLEGAL MATERIAL
7.1. Bird shall not be required to process any material, which in its opinion is or may be of an illegal or libelous nature or infringes the intellectual property or any other rights of any third party.
7.2. The Client agrees to indemnify Bird in respect of all losses costs and expenses resulting from alleged or actual claims arising out of any libelous matter or any infringement of third party Intellectual Property Rights or personal rights contained in any materials provided by the Client and the indemnity shall extend to any amounts paid on lawyer’s advice or in settlement of any claim.
7.3. Bird shall be entitled at any time to discontinue work if in Bird ’s opinion such work may be libelous illegal or an infringement of the Intellectual Property Rights of any third party and in such circumstances the Client shall be liable to pay Birdfor the Services carried out prior to the date of discontinuance immediately upon notice.
8. OWNERSHIP OF ARTWORK AND PRINT GOODS
8.1. All artwork, films, print goods, digital or other media produced or originated during the course of Services shall remain the property of Bird who reserves the right to dispose of the same immediately after completion of the Contract.
8.2. At the request of the Client Bird may be able to make arrangements for the storage of materials at a cost to the Client provided that where such materials are stored for the Client pursuant to the terms of this clause 7.1 whilst every care will be taken to keep the materials in good condition, the Client acknowledges that Bird accepts no liability for damage or loss to such materials of any kind.
8.3. Subject to third party rights at the request of the Client Bird may negotiate with the Client for the sale of such materials at any time during the period mentioned in this clause.
8.4. All ideas designs and visuals whether provided pursuant to the Services during a pitch or tender process or otherwise are submitted by Bird in confidence and unless otherwise agreed in writing Bird owns the Intellectual Property Rights in and to them and the Client shall not have any right to use such ideas designs and visuals unless and until a contract which provides for such use is entered into between Bird and the Client.
9. STORAGE OF CLIENT MATERIAL
9.1 Whilst every care and precaution is taken against loss or damage to materials provided to Bird , all materials are held by Bird at the sole risk of the Client and Bird accepts no liability for any loss or damage to materials supplied by the Client and the Client is advised to obtain adequate insurance in respect of such materials.
10. FORCE MAJEURE
10.1 Every effort will be made to carry out the Contract but its performance is subject to suspension or cancellation by Bird or to such variations as Bird may find necessary as a result of inability to secure labour, materials or suppliers, or as a result of any act of God act of terrorism illness accident war strike lockout or any other labour dispute fire flood drought legislation or other cause beyond the control of Bird.
11.1. Bird may terminate this Contract immediately upon written notice to the Client in the event that the Client:
11.1.1. is in material breach of any of its obligations under this Contract which is not capable of remedy or where such breach is capable of remedy has not remedied the same within fifteen (15) days of being given notice in writing specifying the breach or some other time as Bird shall reasonably determine;
11.1.2. becomes or threatens to become subject to any voluntary arrangement, is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, becomes or threatens to become subject to any bankruptcy petition or order, has or threatens to have a receiver manager or administrator or administrative receiver appointed over its assets undertakings or income has passed a resolution for its winding-up or has a petition presented to any court for its winding-up or for an administration order or anything analogous to the above occurs in respect of such other party; or
11.1.3. ceases or threatens to cease to trade.
11.2. In addition to its rights set out at clause 14.1 above, Bird in its absolute discretion and without prejudice to any other right or remedy may:-
11.2.1. refuse to proceed further with and charge for:
184.108.40.206. all or any Services already carried out (whether or not the same shall have been completed); and
220.127.116.11. all or any materials purchased on the Client’s behalf;
11.2.2. choose to exercise a lien over all of the Deliverables and the Client’s property in its possession in respect of all unpaid debts due from the Client and shall on the expiry of fourteen (14) days notice to the Client be entitled to dispose of such goods and property in such manner and at such price as it deems fit.
12. CONSEQUENCES OF TERMINATION
12.1. Immediately upon the termination of this Contract pursuant to clause 11 above:-
12.1.1. Any license granted pursuant to clause 6.1.2 above shall terminate and all rights shall revert to Bird and the Client shall have no further rights to use the Deliverables;
12.1.2. the Client shall fully pay Bird all monies due and owing in respect of the provision of the Services (including all out-of-pocket and third-party expenses) which are outstanding as at the date of termination.
12.2. Termination of the Contract for whatever reason shall not prejudice or affect the rights or remedies of either party accrued prior to such termination.
13.1 The Client shall not without the written consent of Bird during the Contract period or any time afterwards make use for its own purposes or disclose to any person (except as may be required by law or to its professional advisers for the purposes of this Contract) any confidential secret or proprietary information or such similar information provided by Bird to the Client pursuant to the Contract or prepared by Bird pursuant to the Contract all of which information shall be deemed to be and to remain confidential and proprietary.
14. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
14.1 A person or company who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 (“the Act”) to enforce any right under it and the provisions of the Act are expressly excluded.
15.1 The Contract shall be governed by the Laws of England and Wales and the courts of England shall have competent jurisdiction.