Definitions

The following expressions referred to generically below have these meanings:

Client person, firm or company placing the order for services.

Positive Positive Marketing Ltd.

Conditions standard Terms of Business set out below.

Order each order for services placed by the Client in writing accepting a formal estimate and not requiring a purchase order number.

Force Majeure in relation to either party or any circumstances beyond the reasonable control of that party.

Contract the agreement between Positive and the Client subject to these Terms of Business.

Proposal an offer set out in writing in a formal estimate sent to the Client in digital form for the supply of services.

Rights copyright design and other intellectual property or any other right title and interest subsisting in any part of the world.

Services the services outlined in the proposal summarised in a formal estimate.

 

Supply of Services

Proposals for the supply of services described in a formal estimate are only valid when accepted in writing by the Client within 28 days of the issue date and subject to Positive Conditions. No variation shall be binding unless agreed in writing between Positive and the Client. The Client agrees to forward all relevant information, source materials, technical specifications and respond with authors’ corrections and amendments or approval of artwork within 5 business days to ensure work is progressed in a timely and efficient manner. Positive reserves the right to assume Client approval is given if no such response is received or no further communication advising Positive on the status is received within a period 5 business days of draft artwork is sent and invoice the project costs accordingly. Positive accepts no responsibility for any additional cost incurred as a result of this action.

Client Warranties

Client warrants to Positive that any source materials or assets supplied by the client will not cause Positive to infringe any law of any country or jurisdiction. The accuracy of information given to Positive by or on behalf of the client is free of all defamatory matters and copyright or other legal or compliance restrictions, including GDPR. The Client will fully indemnify Positive against all costs, damages and losses incurred, its employees, servants or agents as a result of any claim made against Positive in respect of the contents of such documents or assets or as a direct or indirect result of publication.

Liability

Positive is not obliged in any circumstances to agree to cancel, amend or vary the terms of an order provided that if Positive agrees to do so the client will remain liable to pay all charges (in any event) and indemnify Positive in full for any additional expenses caused thereby. Any inadvertent error or omission in any document or information issued by Positive shall be subject to correction at any time without any liability on the part of Positive save any liability of Positive in respect of death or personal injury caused by negligence Positive shall not be liable in contract tort (including negligence or breach of statutory duty) or otherwise howsoever and whatsoever the cause thereof:-

  1. For any increased costs or expenses;
  2. For any loss of profit, business, contracts, revenues or anticipated savings;
  3. Any special indirect or consequential damage of any nature whatsoever arising directly or indirectly out of the provision of the services or any error or defect therein or the performance non-performance or delayed performance by Positive of the Contract.
  4. Save as otherwise expressly stated in the conditions all warranties, conditions, terms and representations relating to the product of the services (whether written or oral express or implied by statute, common law use or otherwise) are hereby excluded to the fullest extent permitted by law.
  5. Save in respect of any liability of Positive in respect of death or personal injury caused by negligence notwithstanding anything contained in the contract Positive’s liability to the Client in respect of the contract in contract tort (including negligence or breach of statutory duty) or howsoever otherwise arising shall be limited to £1.
  6. Client will co-operate with Positive and its representatives to facilitate the completion of the order in accordance with its Terms of Business and shall indemnify Positive in respect of all costs and expenses in respect of any failure to do so.
  7. When instructions or advice are received orally by Positive, it shall have no liability to the Client for any misunderstanding or misrepresentation which may arise in relation thereto whether on the part of Positive or the Client.
  8. If, at the instruction of the Client, any order (or any other document relating thereto) is signed by or an invoice is submitted to any person, firm or company who is expressly held out as agent for the Client, then the Client shall be treated for all purposes as the contracting party.

Hourly rates and other charges

The current charge out rate for creative, copywriting and studio production services is £75 per hour. The current charge out rate for account management and project management services is £50 per hour. A service administration charge of 20% will be added to purchases made on behalf of the Client. Positive reserves the right to make a minimum one hour time charge to cover the cost of ad hoc requests made directly by the Client, or indirectly via a third-party. Invoice the full cost of samples, including delivery charges, where goods have not been returned within 14 days of a written request being made to do so.

Payment

  1. Price for services, grant of rights and use specified (where appropriate) will be set out in the formal estimate.
  2. (Full payment is due on receipt of an invoice and in any event it must be paid within 28 days of the invoice date. Services requiring pro-forma payment will not be commenced until payment is received.
  3. Positive reserves the right to increase the price for services to reflect an increase in the cost of goods due to any factor beyond its control, change in delivery date or specification of the services requested by the Client or any delay or failure on the Client’s part to give adequate information or instructions within 5 business days.
  4. Overdue payment is subject to interest at a rate of 10% over the UK standard bank base lending rate at the time and the Client will become liable to reimburse Positive on an indemnity basis in respect of all legal costs and disbursements incurred whether or not recovery proceedings have commenced. Failure to pay the sum due on time shall mean the Client is not entitled to make use of the product of the services (the grant of rights and use specified in the proposal being conditional upon payment of the price set out and agreed in the formal estimate). Any permission which may have been given for prior use of the products or services will automatically be revoked if payment is not received by the due date.
  5. VAT at the prevailing UK rate will be added to invoices, if applicable.

Force Majeure

  1. If either party is affected by Force Majeure it shall forthwith notify the other party of the nature and extent thereof;
  2.  Neither party shall be liable to the other for delay in performance, or non-performance of any of its obligations hereunder, when due to any Force Majeure of which it has notified the other party and the time for performance of that obligation shall be extended accordingly.

Confidentiality

Both Client and Positive agree that all information regarding the business and activities of the other shall be treated as strictly confidential and shall not be published, disclosed or circulated by either party, without prior written agreement unless it is already known to be in the public domain.

Delivery and risk

  1. Risk of damage to or loss of the medium on which the product of the services is delivered shall pass from Positive to the Client upon delivery.
  2. Any dates for delivery of the product of the service are approximate only and Positive shall not be liable for delay in delivery howsoever caused. Time for delivery shall not be the essence.
  3. Any software or materials and accompanying written materials (including usage instructions) are provided by Positive without warranty of any kind. Furthermore, Positive does not warrant, guarantee or make any representations regarding the use or the results of use of the software or materials and accompanying notes in terms of correctness, accuracy or reliability. The entire risk as to the results and performance is assumed by the Client. If the software or materials and accompanying written materials are defective the Client not Positive, its directors or employees assumes the entire cost of all necessary servicing, repair or correction.

Advertising

Positive reserves the right to use the product of the services supplied to the Client in its promotional material and the Client agrees to grant Positive a design credit (without prior consent or request) and in any form Positive chooses.

General provisions

  1. No waiver by Positive of any breach of the contract by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.
  2. (These conditions shall be constructed in accordance with the Laws of England and either the High Court at London or at Positive’s election.
  3. The Client acknowledges and agrees that Positive shall be entitled to sub-contract its obligations under the proposal without the need to obtain the Client’s consent.
  4. The grant of rights and use of the product of the services specified in the proposal is personal to the Client and the Client shall not be permitted to assign or transfer to any other person any of the rights or permissions granted to the Client under the proposal.
  5. If a provision of these conditions is held by any competent independent authority to be invalid or unenforceable in whole or in part the validity of the other provisions and the remainder of the provision in question shall not be affected thereby.


Positive Marketing Ltd

Registered in England No. 02681872

Business address: 86-90 Paul Street, London EC2A4NE United Kingdom

Registered address: Floor 4, Imperial House, 8 Kean Street, London WC2B4AS United Kingdom