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1. DEFINITIONS

In this agreement the following words shall have the following meanings:

A. “Bank Account” means Cerco Communications Ltd bank account: NatWest account number: 2697659 Sort code: 60-23-23

B. “Confidential Information” means all information concerning the business operations, finances, systems or property of the person or party disclosing it

C. “Consumer” means any Client who does not enter into this agreement in the course of trade or for its business

D. “Client” means the person or body who enters into an agreement with Us for the supply of Materials, Goods and Services (also “You” and “Your” as applicable)

E. “Goods” means any tangible property supplied by Us to You under these Terms (but not goods which You purchase directly from an independent supplier, whether or not such purchase was at Our recommendation)

F. “Intellectual Property” means all copyright, moral rights, related rights, patents, trademarks, trade names, service marks, design rights, database rights, semi-conductor rights, rights to domain names, technical know-how and all other similar rights (whether registered or not) and applications for such rights as may exist anywhere in the world

G. “Materials” means all the documents, materials, drawings and designs (in any media) supplied by Us to You under these Terms

H. “Proposal” means the written (which shall include all forms of media) statement of works, quotation or estimate, or other similar document describing the scope of the Services and the nature and extent of the Materials and Goods to be supplied by Us to You

I. “Services” means the works and activities We agree to undertake for You under these Terms

J. “Supplier” means Cerco Communications Limited, a company registered in England and Wales whose place of business is at Stanta Business Centre, 3 Soothouse Spring, St Albans AL3 6PF (also “Us” “Our” and We” as applicable)

K. “Terms” means these terms and conditions of supply and any other written terms agreed subsequently in writing between Us and You.

L. Words denoting the masculine gender include the feminine and neuter and vice versa and words denoting the singular include the plural and vice versa.

M. The headings in these Terms are for convenience only and shall not affect interpretation.

2 GENERAL

A. These Terms shall apply to all contracts made between Us and You for the supply of Materials, provision of Goods and delivery of Services and shall take precedence over all prior agreements whether in writing or otherwise.

B. These Terms take precedence over any terms and conditions submitted by You, whether provided before or after the delivery of these Terms.

C. We are VAT registered under UK under No: 840700165

D. We are accredited with the following professional bodies:

  1. The Chartered Institute of Marketing (Fellow and Chartered Marketer)
  2. The Chartered Institute of Public Relations (Member)
  3. The Institute of Direct Marketing (Member)

E. Subject to clause 8 any variations to these Terms shall be inapplicable unless agreed in writing and signed by Us.

F. Nothing in these Terms shall prejudice or affect any condition, warranty, express or implied, or any legal remedy which either We or You may be entitled to and which it is not possible to exclude or avoid in law, statue or by regulation. Nothing in these Terms shall affect the statutory rights of Consumers.

G. Any waiver of any right under these Terms is only effective if in writing and only applies in the circumstances in which it was given.

H. If you have any enquiry relating to these Terms or the Services then please contact Us by telephone: 01727 847407, or email: info@cercocommunications.com.

I. If any of these Terms (or any part thereof) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in full force and effect.

J. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted that provision shall apply with whatever modification is necessary to make it valid, enforceable or legal.

K. You agree that on entering into a contract with Us You do not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) relating to the Proposal other than as expressly set out in these Terms or the written Proposal.

L. You may not, without Our express written consent assign, transfer, or deal in any manner with any or all or Your rights or obligations under these Terms.

M. We may assign, sub-contract or deal in any manner with any or all of Our rights and obligations under these Terms.

N. These Terms and any contract made under them are for the benefit of the parties to such contract and where applicable their successors and assigns and is not intended to benefit or be enforceable by anyone else. A person who is not a party to such contract shall have no rights under the Contract (Rights of Third Parties) Act 1999 but this provision does not affect any right or remedy of a third party which exists or is available apart from that Act.

O. These Terms and any contract made hereunder, and any dispute or claim arising out of or in connection therewith, shall be governed by and construed in accordance with the laws of England.

P. You agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with any contract made under these Terms.

3 THE CONTRACT

A. We will discuss with You, in the utmost good faith, the scope of the Services, Your requirement for Materials and the quality and quantity of Goods to be supplied to You. Once agreed then We will prepare a Proposal which, if accepted by You, shall identify the Services, Materials and Goods to be supplied to You under these Terms. Once agreed the Proposal, together with these Terms, shall form a binding legal contract between You and Us.

B. Your request for Us to commence work on any part of a Proposal shall, unless agreed in writing to the contrary, be deemed acceptance of the entire Proposal.

C. On completion of the contract We may commission photography or duplication for record and promotional purposes for Our business. Any costs associated therewith shall be payable entirely by Us.

D. Where the Proposal so states You agree to provide us with acknowledgement for Our original designs and concepts.

4 THE PRICE

A. Any estimated costs are valid for a period of three (3) calendar months from the date of submission of the Proposal by Us to You.

B. All fees and costs set out in any Proposal are exclusive of third party payments and Our expenses which shall be identified separately on the Proposal and on invoices. We reserve the right to charge expended sums for travel and reasonable expenses.

C. If You require Us to register any Intellectual Property on Your behalf then You will meet (in advance if requested) all Our reasonable costs and fees and third party expenses associated therewith.

D. All costs and fees estimates are exclusive of Value Added Tax “VAT” which shall be payable in addition at the prevailing rate.

E. Payment shall be made in the manner specified in the Proposal or as agreed between Us and You in writing.

F. In default of any specification in a Proposal or other agreement one half of the total sum for the Services, Materials and Goods (inclusive of VAT) shall be payable as a non-refundable deposit on Our commencing work. Thereafter invoices will be sent to You for payment at the end of each month for any Services provided during that preceding month and upon delivery for any Materials or Goods supplied.

G. Each invoice shall be paid within thirty (30) days of the date of invoice. Time shall be of the essence.

H. Any failure to make payment when due shall incur interest on the late payment at the rate of 4% above NatWest bank base rate from time to time in force and shall accrue both before and after Judgment. If contractual interest cannot be pursued then You, unless you are a Consumer, will be obliged to pay interest in accordance with the Late Payments of Commercial Debts (Interest) Act 1998.

I. Failed or late payments shall also incur administration costs of £25 plus VAT in addition to interest and We shall also be entitled to recover legal and other actual costs of recovery against You.

J. We prefer payment by BACS/SWIFT/IBAN directly to our Bank Account. When paying by any means You must leave sufficient time for the monies to arrive or suffer payment of interest.

5 DELIVERY

A. We will deliver the agreed Services, Materials and Goods in accordance with the Proposal and any timetable agreed by Us in writing. We will use Our reasonable endeavours to meet any deadlines agreed but time shall not be of the essence in relation to the provision of Services, Materials and Goods.

B. You agree that We are not providing the Services, Materials and Goods to You on an exclusive basis and We may supply similar services, materials and goods to other parties.

C. You will give Us every assistance in the provision of the Services (as We may reasonably request) and shall deliver to Us any documents, data or information that may be reasonably required by Us to fulfil Our obligations to You under these Terms. If you fail to do so then any timetable agreed by Us shall be extended for the equivalent number of days of your delay.

D. Any personal information you supply to us related to individuals will be collected, stored and processed in accordance with the provisions of the Data Protection Act 1998. In connection with such data and the purposes of any contract made under these Terms You will act as the Data Controller and We will act as Data Processor in accordance with the said Act. We reserve the right to send you by any means Our marketing or promotional materials for the same or similar services to the Services.

6 RISK AND TITLE

A. Title in Goods and Materials shall not pass to You until you have paid for them in full. Risk in Goods and Materials shall pass on delivery.

B. If delivery is agreed to be made to a carrier for onward delivery to You then unless otherwise instructed by You We will arrange carriage insurance for the Goods and the premium for such insurance will be added to Our next invoice and will be payable by You.

C. You retain full ownership of all Intellectual Property in any materials, data, information or text created or developed by You and supplied to Us for the purpose of the Proposal and/or the Services.

D. You hereby irrevocably and unconditionally indemnify Us and shall hold Us harmless against any and all actions, claims, proceedings, losses, damages, liabilities, obligations, costs, charges and expenses suffered by Us of whatever nature arising out of or in connection with Our use of any of the materials, data, information or text supplied by You (including but not limited to infringement of copyright and breach of local laws).

E. We retain ownership of all Intellectual Property in the Materials, Goods and Services until we are paid in full all and any monies owed by You to Us. All Intellectual Property in Materials created by Us belongs to Us and You have no right to use, transfer or pledge them until and unless we are paid in full. Once payment is made in full we shall and hereby irrevocably agree to assign all Intellectual Property right title and interest that we own in them to You for the nominal sum of £1.

F. Upon payment in full We agree, upon Your reasonable request and at Your cost, to execute documents to evidence the agreement to assign Intellectual Property as set out in these Terms.

G. At no time shall Intellectual Property in any preparatory Materials or draft Materials pass to You, they remain in Our ownership at all times.

H. We hereby warrant that all of the Materials are original works or if not We have secured sufficient licences for Your use of the Intellectual Property therein in compliance with Our obligations under these Terms.

I. You must inspect any Goods within a reasonable time of delivery and shall be deemed to have accepted them seven (7) days after receipt unless You have, in the intervening period, notified Us that they are damaged or not as agreed. We take reasonable care when recommending independent suppliers of goods but accept no liability for any failure or losses arising from your purchase of goods so recommended and you must satisfy Yourselves that they are suitable and of sufficiently good quality.

7 OBLIGATIONS

A. You will co-operate with Us to enable Us to perform Our obligations. You will supply any information, materials or data reasonably required by Us and obtain all necessary permissions, licences and consents which may be required in the circumstances, the costs of which will be Your sole responsibility.

B. If there are any special requirements of You set out in the Proposal, You will use Your best endeavours to achieve them.

C. We will perform the Services with reasonable skill and care to a reasonable standard and in accordance with industry recognised standards.

D. We agree that any Confidential Information, including materials given by You to Us and any copies thereof shall be kept confidential by Us and shall be returned to You on demand or at the end of the contract. Neither We, nor our employees, sub-contractors or agents shall use any of Your Confidential Information for any purpose other than that set out in the Proposal or in connection with the contract for which they have been supplied.

E. You undertake that You will not during the time that We are under contract to You nor within twelve (12) months of the end of any contract, either alone or in conjunction with or on behalf of any other person, directly or indirectly, seek to entice away, solicit or engage any person who was during that time an employee, sub-contractor or consultant to Us or who was otherwise engaged or involved in any way in the provision of the Services, the creation of the Materials or the supply of the Goods. Whilst We agree with You that this provision is reasonable in the circumstances if a court of competent jurisdiction considers that the restriction is invalid but would be valid if the scope or period were reduced then the restriction will continue to apply with such limitation necessary to ensure validity.

8 VARIATIONS

A. We take all reasonable care in checking artwork but it is Your responsibility to ensure that all proofs meet Your requirements prior to print or production. Any variations requested by You after approval of proofs shall be deemed to be additional work and shall be charged for.

B. Any Services or modifications to Materials or supply of additional or alternative Goods that are not set out clearly in the Proposal shall be deemed to be variations to the contract and may incur You in the payment of additional charges or costs.

C. We will make every effort to notify You in advance of additional charges and costs but any written request from You for such variations shall be proof of Your acceptance of the risk of additional reasonable costs.

9 LIABILITY

A. Except for those expressly set out in these Terms all express or implied warranties and conditions are excluded to the extent permitted in law.

B. We carry Professional Indemnity Insurance to a maximum sum of sum of £1,000,000 for any one occurrence for any one occurrence within each twelve (12) month period (starting at the commencement of the contract).

C. Nothing in these Terms shall exclude or limit Our liability for death or personal injury. However, Our liability in contract, tort (including negligence or breach of statutory duty) or otherwise arising by reason of or in connection with a contract under these Terms, shall be limited to the total amount paid by You to Us under or in connection with the contract made under these Terms to which the claim is connected. If the claim is not connected to a contract under these Terms then no liability shall be accepted by Us for a sum in excess of Our insurance cover.

D. Nothing in this liability clause shall admit or permit any liability for indirect or consequential losses including (but not limited to) loss of profit, loss of bargain, loss of opportunity, loss of business, failure or loss of contracts, loss of data, or any other economic loss suffered by you or any third party howsoever caused.

E. We provide no warranties or guarantees in respect of third party supplied goods or equipment and in particular shall accept no liability for their fitness for purpose, quality or suitability, whether express or implied, statutory or otherwise. We will assist you to obtain the benefit of any guarantee or warranty provided by the supplier where possible, at Your cost, when requested to do so by You.

F. We carry out no searches or due diligence in respect of Intellectual Property (in particular but not limited to patent claims, designs, trademarks, trading names, domain names and the like). You are advised to obtain independent advice as to the availability or suitability of the same and We accept no liability therefore. We can recommend suitable advisors for this task.

G. We do not accept liability for any errors in proofs not corrected by You on inspection.

10 TERMINATION

A. Upon termination for any cause You will forfeit any deposit paid.

B. Any issue arising under these Terms should first be reported to the respective senior managers for resolution. If resolution is not possible in regard to a complaint or dispute then the matter should be considered for referral to mediation.

C. Either party may terminate any contract made under these Terms by giving to the other party one month’s written notice of termination, for any cause.

D. Either party may terminate any contract under these Terms without liability to the other if:
E. The other party commits a material breach of these Terms and (if such breach is remediable) fails to remedy that breach within fourteen (14) days of written notice thereof; or
F. An order is made or resolution is passed for the winding up or bankruptcy of the other party or circumstances arise which entitle a court of competent jurisdiction to make a winding up or bankruptcy order of the other party; or
G. An order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by any person; or
H. A receiver is appointed over any of the other parties assets or undertakings or if any other person takes possession of or sells the other parties assets; or
I. The other party makes arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
J. The other party ceases or threatens to cease to trade; or
K. The other party suffers any similar or analogous action in any jurisdiction in consequence of debt; or
L. The other party takes any action or permits any act or omission which as a consequence puts in peril the Intellectual Property rights of the other party.

M. On termination for any reason You will immediately pay to Us any outstanding invoices and interest and in respect of Services supplied but for which no invoice has yet been submitted We may submit an invoice which shall become immediately payable by You. We may supply any Goods or Materials then ready for delivery or which have been ordered non-returnable and payment for such shall become due prior to or on delivery.

N. The accrued rights of the parties at termination and the continuation of any of these Terms stated to survive or implicitly surviving termination shall not be affected thereby.

11 FORCE MAJEURE

A. We shall have no liability to You if We are prevented or delayed from performing the Services or delivering the Materials or Goods or from carrying on Our business by acts, omissions, events or accidents beyond Our reasonable control, including strikes, lock-outs or other industrial disputes (whether involving Our workforce or those of others) failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, terrorism, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.

12 NOTICES

A. Any notice given under these Terms shall be in writing and sent to the address provided by the other party (or such other address as may be notified to the other party from time to time).

B. Delivery of notices shall be made in person or by first class prepaid post.

C. A notice is deemed to be received if delivered personally at the time of delivery, if delivered by post two (2) days from the date of posting.

D. To prove service it is sufficient to prove that the notice was handed to any adult at the address given or in the case of post that the envelope containing the notice was properly posted and addressed.

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