Standard Terms and Conditions of Business (“Terms and Conditions”)
The following terms and conditions are applicable to all trade with Freshwater UK Limited, Freshwater (UK Regions) Limited, and The Waterfront Conference Company Limited..
For the avoidance of doubt, in these conditions:
“We” or “Us” or “Freshwater” means Freshwater UK Limited, Freshwater (UK Regions) Limited, and The Waterfront Conference Company Limited, the supplier of the relevant services.
“You” means the client, as set out in the letter of engagement.
“Intellectual Property Rights” means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights and, in each case: (a) whether registered or not; (b) including any applications to protect or register such rights; (c) including all renewals and extensions of such rights or applications; (d) whether vested, contingent or future;(e) to which the relevant party is or may be entitled, and (f) in whichever part of the world existing.
“Works” means all artwork, campaigns, press releases, reports, presentations and other documents whatsoever produced by Us in the performance of the Services.
1. Terms of Engagement
You have asked us to provide you with those services as set out more fully in the letter of engagement (the “Services”). The scope of the Services and how we will charge you for them are set out in the letter of engagement, which should be read in conjunction with these Terms and Conditions. Together, the letter of engagement and these Terms and Conditions form our agreement with you.
Unless otherwise agreed in writing between us, these Terms and Conditions apply to all Services which we will provide for you. The Terms and Conditions apply to the exclusion of all others, whether set out on your purchase order or otherwise, subject to any requirement of law.
You may only vary the monthly/weekly level of resource (e.g. the number or days or hours) referred to in the letter of engagement with our agreement. Any agreed variation is subject to a three months’ notice period beginning at the end of the month in which the variation is mutually agreed, unless otherwise stated in the letter of engagement.
For retained work (as set out in our letter of engagement) our contracts run for an initial period of 12 months following which they can be terminated on 3 months’ notice unless otherwise agreed in the letter of engagement.
For contracts on a monthly retainer we reserve the right to cap any under service carry over to a maximum of 3 months of the contracted retainer unless otherwise agreed.
We will co-operate fully with you in providing the Services and where appropriate take the initiative in offering advice. We will provide the Services with reasonable skill and care and in accordance with any details or specification set out in the letter of engagement.
You agree to:
- provide all reasonable assistance and co-operation to us to enable us to perform the Services, including (without limitation) providing all reasonable information and access to relevant personnel;
- give us a clear and complete brief of the Services required; and
- ensure that all information is accurate and in no way misleading.
You will ensure the accuracy of all information submitted to us in connection with this agreement. You warrant that you have the right to disclose all such information to us, and that all information submitted shall not contain any content whatsoever which is obscene, libellous, slanderous or otherwise defamatory, false or misleading.
3. Consultancy status
You agree that we act as independent persons and nothing in this agreement constitutes us as partners, principal and agent or employer and employee and the agreement does not establish any joint venture, trust, fiduciary or other relationship between us, other than the contractual relationship expressly provided for in it.
You will notify us in writing of any intention to engage or use any third party consultancy providers who will provide services similar to the Services other than those already advised.
5. Professional support package
Freshwater can provide you with a comprehensive package of professional and office support services if required.
6 Disbursements and expenses
Unless included in the professional support package detailed in paragraph 5 above or unless otherwise agreed in writing between us, our fees for the Services shall be exclusive of any expenses which we may incur on your behalf from time to time. These are known as disbursements and include:
- accommodation and subsistence
- advertising artwork and mechanical items
- design, artwork and print
- press material production and distribution
- direct mail
- exhibition and display material
- film and video production
- market research
- media monitoring (radio, television, press, online) including media monitoring services (eg Durrants, Vocus etc.)
- messenger and courier services
- newspaper and magazine subscriptions
- photography and print services
- photo library images
- bulk photocopying and stationery
- bulk postage and packing
- special events, meetings, conferences etc
- studio hire
- travel costs
- mileage (at 50p per mile)
- venue hire
- special insurance
All disbursements and expense items will be charged at standard market rates and are subject to a 17.65% handling charge, which is the charge recommended by the Public Relations Consultants Association (“PRCA”).
7. Approvals and authority
After obtaining general approval of any campaign or project plans, we will submit to you for specific approval (save in the case of emergency) as required:
- Draft press releases, key messages, articles, summaries; documents, narratives, photographs and captions;
- Copy, layouts, artwork and scripts; and
- Cost estimates of the various items in the programme.
Your written or oral approval of any of the above items will be deemed by us as your authorisation to proceed with the Services to publication, and any such approval will be taken as authorisation to enter into any relevant contracts with suppliers on the basis of any estimates which we have submitted to you.
We will take all reasonable steps to comply with any reasonable requests from you to amend, suspend, reject or cancel any of the Services including work in preparation, provided that we can do so without being in breach of our contractual obligations to suppliers or other third parties.
In the event of any amendment, suspension or cancellation of the Services which is agreed to by us, you will reimburse us for all costs, disbursements and/or expenses incurred by us prior to, or as a result of, any cancellation, suspension or amendment and which cannot be recovered by us.
8. Intellectual Property
Unless negotiated and agreed in writing, all Intellectual Property Rights in all Works rests with us, unless duly assigned by us to you.
On payment by you of all of our fees and charges and all disbursements in full, and provided they have been previously agreed in writing, we will assign to you (by way of present and where appropriate future assignment) all such Intellectual Property Rights in the Works that may vest in us. We shall do and execute all documents as may be necessary to assign our Intellectual Property Rights in the Works to you.
You warrant to us that you have in place all the necessary rights and consents to allow us to use the artwork, images, text or other material that you supply to us for use in the Services.
You grant us consent to use your brand and any Intellectual Property Rights in your brand for the purpose of providing the Services and for use in the Services. You agree to advise if you would prefer we didn’t or wish to be consulted prior to use.
You shall indemnify, and keep indemnified, us against any and all proceedings, claims, damages, losses, expenses or liabilities that we may incur or sustain as a direct or indirect result of, or in connection with
- any information, representation, reports, data or material supplied, prepared or specifically approved by you, including in relation to proceedings under the Trade Descriptions Act 1968. Such material shall include draft press releases, key messages, articles, reports, summaries, documents, narratives, copy, scripts, artwork, detailed plans and programmes.
- any breach by you of your warranty in clause 2.
- We will advise you in good faith but our advice is strictly subject to you taking the advice of your legal advisers. You should always seek the advice of your legal advisers under circumstances where you are unsure of your legal position and where our advice to you involves reputation management, crisis management, damage limitation or seeks to pre-empt anticipated adverse criticism of you.
- Nothing in these Terms and Conditions shall:
- exclude or limit our liability for death or personal injury caused by our negligence or that of our employees or agents; or
- exclude or limit our liability for any fraudulent misrepresentation made by us; or
- affect your statutory rights where we are dealing with you as a consumer within the meaning of the Unfair Contract Terms Act.
c. Subject to Condition 10b, we will not be liable to you (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any economic loss including (but without limitation) loss of profits, business, goodwill, reputation, revenue or business opportunity whether direct or indirect arising out of or in connection with any performance or failure to perform the Services or any breach of this agreement by us.
d. Subject to Condition 10b, our liability to you shall not exceed the price of the Services paid by you during the 12 months preceding the event giving rise to liability.
You and we will attempt to resolve in good faith any dispute arising between us out of the operation of this agreement.
12. Payment in excess
Two fundamental principles on which the financial relationship between us is based upon are:
- We shall finance our own business activities, but we shall not be responsible for any costs, disbursements or expenses incurred on behalf of you; and
- As principal we are held by suppliers as solely liable for payment under any contracts entered into on your behalf.
It is, therefore, essential that we are paid in full for all amounts (which are not the subject of a genuine dispute) invoiced to you by the relevant due date so that we are able to pay our suppliers and other third parties in accordance with our contracts with them.
- Unless otherwise agreed between us in writing, project work will be billed 50% up front and then monthly based on the balance of work done, and retained amounts will be billed monthly based on work done or evenly each month is there is a specific agreement.
- All invoices are payable in full within 30 days of our invoice date together with VAT at the rate prevailing at the relevant tax point. You must notify us in writing within 21 days of the invoice date if you have any questions, queries or disputes concerning any amounts invoiced. After 21 days we will assume the invoice is OK to be paid as per terms. You shall pay us interest on all amounts not paid from the due date until receipt by us of cleared funds at the rate of 5% above the base lending rate of National Westminster Bank plc on the due date, both before and after any court judgment.
- We will have a general lien over all and any of your property in our possession until we have received payment in cleared funds of all amounts due from you to us under this agreement or any other agreement between us.
14. Fee review
We may increase our monthly Service fees and/or our standard hourly rates by 5% on 1st January each year (the “Fee Review Date”). We will notify you in writing to inform of any such increase no less than 28 days prior to the Fee Review Date. Such increase shall only be applied to contracts which have been entered into for more than six months prior to any relevant Fee Review Date.
15. Contract extension
Any agreement between us may be extended by mutual agreement between the parties in writing.
In the event where there is no written agreement to extend the services referred to in this agreement it will continue to operate on a rolling basis.
You or we may terminate this agreement:
- with immediate effect in writing if the other commits a serious material breach of this agreement which (if the breach is capable of remedy) it fails to remedy within 30 days of receipt of a notice requiring such breach to be remedied; or
- with immediate effect by notice in writing if the other becomes insolvent or is unable to pay its debts as and when due.
- by serving notice in accordance with clause 1.
If the work levels have been variable during the contract term, then, unless otherwise agreed, the fee levels during the notice period will be paid either at the agreed fixed amount or at the average monthly fee income for the previous six months, whichever is the greater.
Upon termination of this agreement for whatever reason, you will be responsible for the cost of all work done and all expenses incurred by us up to and during any notice period. We will be entitled to keep any property belonging to you which is held by us until payment in full of all outstanding amounts is received by us.
You and we shall keep confidential all confidential information of the other received or obtained as a result of entering into or performing this agreement and shall use such confidential information only for the purposes of this agreement. You and we will not disclose the confidential information of the other, unless agreed by the other, to any third party unless such disclosure is necessary to perform the Services.
Neither of us shall, for a period of 6 months following termination of this agreement, employ, engage, or offer employment to any employee of the other who has been materially involved in the performance of the Services, without the other’s prior written consent.
19. Suspension of work
We may immediately suspend performance of our obligations under this agreement in the event that payment of any service fee, disbursement or expense (which is not the subject of a genuine dispute) is not made in full by the relevant due date.
20. Data Protection
Both parties will comply with their respective obligations under the Data Protection Legislation.
For the purposes of this clause 21 the expression ‘adequate procedures‘ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.
We each agree to comply with the Bribery Act 2010 and have in place adequate procedures to prevent bribery taking place.
22. Code of Conduct
Where political communications, lobbing or public affairs is being carried out, we are committed to abide by the codes of lobbying conduct set out by the Association of Professional Political Consultants . If registrable activity has taken place, we are required to submit the names of relevant clients to be published on the registers of relevant organisations. We may also be required to make recommendations to a client if their activity may be in breach of those codes of conduct.
23. Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014
It is our statutory duty to comply with this Act of Parliament and as per the guidance of the Office of the Registrar of Consultant Lobbyists. This includes registering a client on the Lobbying Register if Freshwater has undertaken registrable activity as defined in the Act. Under no circumstances can we avoid or ignore our statutory duty; to do so would make us liable to criminal or civil prosecution.
24. Sub-contracting of work
We may in appropriate cases (for example to cover holidays or vacations or to bring in someone with particular expertise) sub-contract performance of the whole or any part of this agreement with you provided always that we will remain primarily liable for the performance of the agreement whether by us or our sub- contractor.
This agreement is personal to you and you will not assign, underlet, sub-contract, charge, sell, bargain or otherwise deal in any way with the benefit of this agreement without our prior written consent.
26. English law and jurisdiction
This agreement is governed by and construed in accordance the laws of England and Wales and subject to the exclusive jurisdiction of its courts.
The failure by either of us to enforce at any time or for any period any one or more of the terms or conditions of any contract between us shall not be a waiver of them or the right at any time thereafter to enforce all terms and conditions of that contract.
28. Force majeure
You and we will be released from our respective obligations in the event of national emergency, war, prohibitive governmental regulations or if any other cause beyond the reasonable control of you or us renders performance of any contract between us impossible, and whereupon all money due to either of the parties shall be paid in full immediately.
29. Relationship of parties
Nothing in this agreement will create or be deemed to create a partnership, joint venture or relationship of principal and agent between us.
Each term of this agreement is severable and distinct from one another. The invalidity, illegality and unenforceability at any time of any provisions will not in any way affect or impair any other provision.
Any notice given in connection with this agreement will be in writing and may be delivered by hand, first class post, special delivery post, or facsimile addressed to the recipient. All notices will be deemed to be served on the next business day other than for a notice served by hand or facsimile which, provided it is served or faxed during normal business hours, will be deemed served immediately
32. Third party rights
This agreement does not give any person who is not a party to it any rights to enforce any of its provisions.