Dinosaur Terms and Conditions of Business
DINOSAUR TERMS AND CONDITIONS
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 Purchase Order with whom the Contract is made;
1.1.2. “Commencement Date” means the date of this agreement as set out in the signature page of this Contract;
1.1.3 “Contract” means the agreement made between Dinosaur and the Client as detailed in these terms and conditions;
1.1.4. “Dinosaur” or “Us” means Dinosaur UK Limited (company number 4331684) trading as Dinosaur whose registered office is at The Landmark 21 Back Turner Street, Manchester M4 1FR and their employees, agents and assigns;
1.1.5. ”Deliverables” means the goods and works, whether physical or digital, of authorship designed developed written prepared or provided to the Client in relation to the Services provided by Dinosaur;
1.1.6. “Estimate” means the quotation for the cost and scope of the Services provided to the Client by Dinosaur as approved by the Client prior to the Commencement Date;
1.1.7 “Fee” means the amount payable to Dinosaur by the Client in respect of the Services;
1.1.8. “Intellectual Property Rights” means all patents, rights to inventions utility models copyright and related rightstrade 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;
1.1.9. “Services” means the creative, design and advertising services to be provided by Dinosaur to the Client in accordance with the Contract details of which are set out at Schedule 1;
1.1.10 “Term” means thirty six (36) months from the Commencement Date unless earlier terminated in accordance with these terms and conditions;
1.1.11 “Territory” means the United Kingdom
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 Dinosaur in writing.
1.4. Any terms of business offered by or on behalf of the Client shall be deemed to be expressly rejected by Dinosaur.
2. FEE, QUOTATIONS AND PRICES
2.1. The Fee shall be that stated in the Estimate or such other amount as may be charged pursuant to clause 2.3.
2.2. The amount stated in any quotation given by Dinosaur shall remain valid for a period of thirty (30) days from the date of the quotation and if Dinosaur does not receive a Client purchase order for the Services within this period the quotation shall be deemed to be automatically withdrawn.
2.3. Where the Client:-
2.3.1. requests changes to the Services;
2.3.2. requests alterations to the Deliverables;
2.3.3. requests additional proofs;
2.3.4. fails to provide the materials required to provide the Services;
2.3.5. fails to provide adequate instructions or information required to provide the Services;
2.3.6. does not permit sufficient time for the Services to be completed during normal working hours i.e. 9am – 5.30pm, Monday – Friday; then Dinosaur 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.
2.4. Dinosaur reserves the right to sub-contract work and where any quotation given includes an estimate in respect of the costs of a sub-contractor such estimate whilst given in good faith is subject to amendment and will not be binding until confirmed by Dinosaur.
2.5. The Contract may be amended or cancelled only by agreement in writing by Dinosaur and the Client.
2.6. The Client agrees that if requested by Dinosaur it shall pay for all work carried out at the Client’s request including work carried out for an initial pitch.
2.7. The Fee is exclusive of Value Added Tax which will be charged to the Client at the rates in force at the date of the Contract.
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 Dinosaur’s control.
3.3. Where at the request of the Client Dinosaur 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 despatch of the Deliverables, no claims will be accepted by Dinosaur 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 Dinosaur.
3.5. Any additional work to replace lost or damaged Deliverables where such loss or damage is not due to Dinosaur’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. Dinosaur reserves the right to charge and be paid interest on all sums due from the Client at the rate of 4% above HSBC plc 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. THE APPROVAL PROCESS
5.1. The terms of this clause 5 will apply to all Deliverables supplied by Dinosaur whether the copy artwork digital or other media has been created by Dinosaur 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 digital or other media as soon as reasonably practicable following receipt and in any event within three (3) working days of receipt from Dinosaur. Time critical approvals shall be given within the deadlines agreed between the Parties from time to time.
5.3. Following agreed creative / Design, the Client shall be entitled to request up to two (2) minor incidental amendments to Production / Artwork supplied for approval. Amendments requested by the Client in addition to the two (2) permitted will be charged to the Client.
5.4. Approvals under this clause 5 shall be undertaken by the named Client personnel notified by the Client to Dinosaur in writing on or before the Commencement Date; Dinosaur shall not be liable for any defects in the Deliverables beyond Dinosaur’s reasonable control.
5.5. If the Client believes that the Deliverables do not conform to the Estimate whether as to content or quality or quantity it shall notify Dinosaur 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 Estimate in every respect.
5.6. Dinosaur’s liability for defects in the Deliverables caused by the negligence of Dinosaur 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 Dinosaur.
5.7. In any event the total liability of Dinosaur 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 Dinosaur 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. Save as otherwise expressly agreed in writing between the Parties:-
6.1.1. Intellectual Property Rights in the Deliverables shall belong to Dinosaur and shall be licensed to the Client as provided at clause 6.1.2 below;
6.1.2. Provided always that Dinosaur receives payment of the Fee Dinosaur shall grant to the Client a worldwide, perpetual, irrevocable, royalty free licence to use the Intellectual Property Rights in the Deliverables created by Dinosaur for the Client subject to the terms of this Contract.
6.2. For the avoidance of doubt, the Client shall not acquire ownership of any underlying material or software used by Dinosaur in the performance of the Services and in respect of which the Intellectual Property Rights are:
(i) at the Contract date owned by Dinosaur; or
(ii) owned by any third party;
6.3. Where the Deliverables incorporate third party materials Dinosaur shall at the Client’s cost either;
i) obtain an assignment of the Intellectual Property Rights in the third party materials to the Client upon reasonable commercial terms to be agreed by the Client; or
ii) where an assignment is not possible obtain a licence for the Client to use such materials for the purposes agreed in the Contract upon reasonable commercial terms to be agreed by the Client.
6.4. 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 licence to use the Deliverables shall immediately terminate and all rights shall revert back to and be the property of Dinosaur.
6.5. The provisions of clause 6.4 above shall be without prejudice to any claim which Dinosaur may have against the Client for non-payment of the Fee or any part of it.
6.6 Dinosaur warrants that the work created by Dinosaur during the course of providing the Services shall be original and to the best of Dinosaurs knowledge and belief, use of the work by the Client within the Territory shall not infringe any third party Intellectual Property Rights;
6.7 Dinosaur further warrants that the work created by Dinosaur shall not contain any content which is obscene, blasphemous, libellous or otherwise contrary to English law;
7. TITLE AND RISK
7.1. Title to the Deliverables shall not pass to the Client until full payment of the Fee is received by Dinosaur in cleared funds. The Client shall have possession of the Deliverables as bailee (or custodian) for Dinosaur and shall store the Deliverables in such a way as shall enable them to be identified as the property of Dinosaur provided that if the Client is purchasing the Deliverables for resale the Client may act as agent of Dinosaur and sell or deliver the Deliverables to a third party in the ordinary course of the Client’s business on condition that until full payment of the Fee, the Client shall hold all the proceeds in an interest-bearing account and further the Client hereby assigns to Dinosaur all rights and claims which the Client may have against its customer arising from such sale until payment is made in full.
7.2. Dinosaur reserves the right to repossess any Deliverables in respect of which payment is overdue and following such repossession to resell such Deliverables if possible and for this purpose the Client hereby grants an irrevocable right and licence to Dinosaur its servants and agents to enter upon the Client’s premises and this right shall continue despite termination of the Contract for any reason and is without prejudice to any other rights of Dinosaur
7.3. All risk in connection with the Deliverables shall pass to the Client upon despatch from the premises of Dinosaur.
8. LIBELLOUS/ILLEGAL MATERIAL
8.1. Dinosaur shall not be required to process any material which in its opinion is or may be of an illegal or libellous nature or infringes the intellectual property or any other rights of any third party.
8.2. The Client agrees to indemnify Dinosaur in respect of all losses costs and expenses resulting from alleged or actual claims arising out of any libellous 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.
8.3. Dinosaur shall be entitled at any time to discontinue work if in Dinosaur’s opinion such work may be libellous illegal or an infringement of the Intellectual Property Rights of any third party and in such circumstances the Client shall be liable to pay Dinosaur for the Services carried out prior to the date of discontinuance immediately upon notice.
9. OWNERSHIP OF ARTWORK AND DELIVERABLES
9.1. All artwork films print goods digital or other media produced or originated during the course of Services shall remain the property of Dinosaur who reserves the right to dispose of the same immediately after completion of the Contract.
9.2. Despite the terms of clause 9.1 above at the request of the Client Dinosaur may be able to make arrangements for the storage of materials at the cost of the Client provided always that where such materials are stored for the Client pursuant to the terms of this clause
9.2 Whilst every care will be taken to keep the materials in good condition, the Client acknowledges that Dinosaur accepts no liability for damage or loss to such materials of any kind.
9.3. Subject to third party rights at the request of the Client Dinosaur may during the Term negotiate with the Client for the sale of such materials.
9.4. All ideas designs and visuals whether provided pursuant to the Services during a pitch or tender process or otherwise are submitted by Dinosaur in confidence and unless otherwise agreed in writing Dinosaur 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 Dinosaur and the Client.
10. STORAGE OF CLIENT MATERIAL
10.1. Whilst every care and precaution is taken against loss or damage to materials provided to Dinosaur, all materials are held by Dinosaur at the sole risk of the Client and Dinosaur 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.
11. LIMITATION OF LIABILITY
11.1. Dinosaur will have no liability in respect of any statement made by Us or by another on behalf of Dinosaur before the date of the Contract.
11.2. In the event of non-performance or breach of any term of this Contract Dinosaur shall have no liability whatsoever in contract, tort (including negligence) or otherwise for any loss of goodwill business revenue or profits anticipated savings or wasted expenditure (whether reasonably foreseeable or not) or indirect or consequential loss suffered by the Client.
11.3. The maximum aggregate liability of Dinosaur under or in connection with this Contract, whether in contract tort (including negligence) or otherwise will be limited to the Contract Fee received by Dinosaur.
11.4. This clause 11 shall have effect subject to any limitation imposed by any applicable law, including without limitation that this clause shall not apply to liability in respect of fraud or personal injury or death due to negligence of Dinosaur.
12. FORCE MAJEURE
12.1 Every effort will be made to carry out the Contract but its performance is subject to suspension or cancellation by Dinosaur or to such variations as Dinosaur 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 Dinosaur.
13. MATERIALS SUPPLIED BY THE CLIENT
13.1. Dinosaur may reject any material supplied by the Client which appears unsuitable or illegible and the Client agrees that additional costs will be added to the Fee to cover all additional work required by Dinosaur in respect of such material.
13.2. Where inadequate materials are supplied by the Client liability for defective work will not be accepted by Dinosaur.
13.3. The quantities of materials supplied by the Client shall be adequate to cover normal spoilage.
14.1. Either party may terminate this Contract immediately upon written notice to the other party (the “Breaching Party”) in the event that the Breaching Party:
14.1.1. 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 the non-Breaching Party shall reasonably determine;
14.1.2. 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 Breaching Party; or
14.1.3. ceases or threatens to cease to trade.
14.1.4 experiences a change of control (within the meaning of s. 1124 of the Corporation Tax Act 2010)
14.2. In addition to its rights set out at clause 14.1 above, in the event that through the act or omission of the Client, Dinosaur is prevented from providing the Services then Dinosaur may without prejudice to any other right or remedy:-
14.2.1. refuse to proceed further with and charge for:
18.104.22.168. all or any Services already carried out (whether or not the same shall have been completed); and
22.214.171.124. all or any materials purchased on the Client’s behalf;
14.2.2. 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.
14.3 Either party may terminate this Contract for convenience upon three (3) months written notice which may be given by either party at any time following the expiry of twelve (12) months from the Commencement Date;
14.4 The Client may terminate this Contract immediately upon written notice to Dinosaur in the event a Key Man is removed from the provision of the Services and the replacement offered is not acceptable to the Client (acting reasonably). For the purposes of this clause 14.4 the Key Man shall be Mark Beaumont.
15. CONSEQUENCES OF TERMINATION
15.1. Immediately upon the termination of this Contract pursuant to clause 14 above the Client shall fully pay Dinosaur 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.
15.2. Termination of the Contract for whatever reason shall not prejudice or affect the rights or remedies of either party accrued prior to such termination.
16.1. No party without the prior written consent of the disclosing party shall during the Term 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 disclosed to it by the other party pursuant to the Contract all of which information shall be deemed to be and to remain confidential and proprietary to the disclosing party.
17. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
17.1. A person or company who is not a party to this Contract has no right under the Contracts (Rights of ThirdParties) Act 1999 (“the Act”) to enforce any right under it and the provisions of the Act are expressly excluded.
18.1 The Client acknowledges that Dinosaur may use the product of the Services in its portfolio and for Dinosaur’s own marketing purposes;
19.1 For the Term of the Contract Dinosaur agrees that it shall not undertake work for any direct competitor of the Client and for a period of six (6) months thereafter Dinosaur agrees that it shall not undertake work for any direct competitor of the Client; If the client wishes to include a list of competitors, this can be included in a separate schedule
20.1. The Contract shall be governed by the Laws of England and Wales and the courts of England shall have competent jurisdiction.
- Brand modelling and essence
- Brand positioning
- Company, product and service naming
- Brand visual identity and tone of voice
- Brand campaign platforms
- Awareness and activation advertising campaign creative
- Social and digital media strategy
- Analytics and social listening
- Paid social content: Facebook, Instagram, YouTube, Advertorial/native, Linked-in, Twitter, Pinterest and other social networks
- Online display advertising and retargeting
- Offline: out of home advertising, press, leaflet and literature, point of sale, direct mail
- Film: TV adverts, brand films, motion, explainers
- Websites and online brand experiences
- Ecrm email, and internal comms
- Brand strategy
- Name generation
- Creative concepts
- Scriptwriting and film making
- Motion graphics and editing
- Photography and art direction
- Website UX and creative
- Digital build
- Social content creation
- Online display and HTML5
- Ecrm and email creation
- Design and artwork
- Account and project management