Terms & Conditions
1. GENERAL
These terms and conditions of service (‘Conditions’) and any quotation or order form shall form the contract (‘Contract’) between Flourish Marketing Ltd (‘the Company) and you (‘the Client’) for the provision of the services (‘the Services’) identified in such quotation/proposal.
The acceptance of the Company’s quotation or the placing of an order by you the client, which the Company accepts, shall form the contract between the parties (‘Contract’) and these Conditions shall govern the Contract in the event of conflict with applicable terms and conditions of the Client.
Any reference in these Conditions to a party shall mean either the Company or the Client, and a reference to parties shall be both.
2. COMMENCEMENT AND DURATION
The Contract shall commence upon the date that the Contract comes into force. Unless otherwise stated in the Contract, the Services shall be provided from the date of commencement of the Contract and shall, subject to earlier termination by these Conditions, expire automatically on completion of the Services or upon expiry of the period, if any, stated in the quotation or order form, as the same may be extended by agreement of the parties from time to time.
3. DOCUMENTS AND SPECIFICATIONS
a) The Client shall be responsible for ensuring the accuracy and clarity of any documents and specifications it provides to the Company, and the right to so provide the same, and for giving the Company all necessary information relating to the Services within sufficient time to enable the Company to provide the Services by the Contract.
b) Any deliverables resulting from the Services and provided by the Company to the Client under the Contract shall be owned by the Client. The Company hereby grants to the Client an irrevocable non-exclusive licence without limit of time to use the Company’s intellectual property rights contained within such deliverables for the purpose for which the Services were provided.
4. FEES
a) The fee shall be determined by and in respect of the Company’s quoted day rate (being 9 am to 5 pm Monday to Friday, excluding bank holidays (‘Daily Period’)) and such other costs and expenses as shall be chargeable under the Contract.
b) The fee is exclusive of any costs and expenses identified in the quotation and any applicable value-added tax or other tax, which shall be additionally payable by the Client.
c) If the Client requests a variation to the Services, or the provision thereof, an agreement by the Company to accept such variation may be subject to the right to amend the fee and payment of any unavoidable costs and expenses incurred by reason thereof.
d) The Company reserves the right to amend the fee annually by an appropriate indexation amount.
e) The Company’s quoted day rate will increase by a multiple of 2 if the Services are carried out on a Saturday or Sunday at the request of the Client.
f) If, at the request of the Client, the Services are required to be performed in excess of the Daily Period, an agreement by the Company thereto may be subject to the right to charge for such excess period.
g) The Company will charge the Client for all third-party costs stated in any Proposal or as otherwise agreed with the Client. The Company shall be entitled to retain any rebate or discount offered by the relevant third party without passing this on to the Client, or otherwise reserves the right to charge the Client (at its absolute discretion) an uplift on the amount charged by such third party.
5. PAYMENT
a) Subject to any special terms agreed in writing between the parties, the Company shall be entitled to invoice the Client for the fee due for the Services monthly in arrears.
b) The Client shall pay the fee due for the Services within 28 days of the Company’s invoice date.
c) If any amount of the invoice is disputed by the Client, the Client shall, inclusive of the grounds for such dispute, inform the Company of said amount with 7 days of the delivery of the invoice (the ‘Disputed Amount’) and shall, in the event of any such dispute, pay to the Company the value of the invoice less the Disputed Amount.
d) All undisputed amounts due under the Contract to the Company shall be paid in full by the Client (without any deduction or withholding other than that required by law, if any, in respect of withholding or deduction of tax) and the Client shall not be entitled to assert any set-off or counterclaim against the Company to justify withholding payment of any such amount in whole or in part.
6. CONFIDENTIALITY
Each party will keep confidential such information, identified as confidential (including the Company’s fee), of the other which is disclosed to or obtained by it under or as a result of the Contract, and will not divulge the same to any third party without the prior written consent of the other.
7. TERMINATION
a) Either party may terminate the Contract for convenience by giving 14 days’ notice in writing.
b) Termination or expiry of the Contract howsoever caused shall not affect (i) any rights or liabilities of the parties, which have accrued prior to the date of such termination or expiry, nor (ii) the continuance in force of any provision hereof which is by implication intended to continue in force on or after such termination or expiry.
8. LIMITATION OF LIABILITY
a) The Company shall provide the Services with reasonable skill and care and in a professional manner.
b) In any event, the Company shall not be liable for any increased costs or expenses, or for any loss of profit, business, contracts, revenues or anticipated savings, or for loss or damage to goodwill or reputation, or for any special, indirect or consequential damages of any nature whatsoever.
c) Any liability of the Company shall in any event be limited to the lesser of (i) the fee paid under the Contract, (ii) the annual fee paid under the Contract in the year in which such liability arose, or (iii) the fee paid by the Client in respect of the event giving rise to such liability.
9. LAW
a) The Contract shall be governed by and construed in accordance with the law of Scotland and the exclusive jurisdiction of the Scottish courts shall apply, save that, where the Services are supplied to a client registered in England or Wales the Contract shall be governed by and construed in accordance with the law of England and Wales and, in such circumstances, the exclusive jurisdiction of the English courts shall apply.
b) The parties shall use their best efforts to negotiate in good faith and settle amicably any dispute that may arise out of or relate to the Contract or a breach thereof. If any such dispute cannot be settled amicably through ordinary negotiations, the dispute at the election of either party may be submitted for resolution to a court of competent jurisdiction.
