Terms and Conditions

  1. Introduction:
    1. Unless otherwise stated in writing, all orders are accepted subject to these terms and conditions as stated herein and the Customer by authorising or allowing work to proceed is deemed to have acknowledged this fact.
    2. These terms and conditions should be read together with the Project Confirmation. If there is any conflict between the Project Confirmation and these terms and conditions, the provisions of the Project Confirmation shall prevail.
    3. No variation to these terms and conditions shall be binding unless agreed in writing to between the authorised representatives of Hamlin Daniels and the Customer.
    4. Hamlin Daniels’s employees, agents or sub-contractors are not authorised to make any representations concerning any aspect of this Agreement unless such authority has been confirmed by Hamlin Daniels in advance in writing. In entering into the Agreement the Customer acknowledges that it does not rely on, and waives any claim for breach of any such representations which are not so confirmed.
  2. Definitions and Interpretation:
    1. In this Agreement:
      “Agreement” means these terms and conditions together with the Project Confirmation.
      “the Customer” and “You / Your” means the company, firm, person, persons, corporation or public authority using any of Hamlin Daniels’s services as identified in the Project Confirmation and includes their successors or personal representatives.
      “Completion Date” means the date (if any) specified in the Project Confirmation as the estimated date on which the Project shall be Complete.
      “the Project Confirmation” means the proposal document sent to the Customer by Hamlin Daniels which sets out the Work to be carried out, price, Completion Date and such other specific contractual terms as may be appropriate.
      “the Contract Price” means the price for the Work set out in the Project Confirmation.
      “Hamlin Daniels” or “we/our/us” means Hamlin Daniels (Edinburgh) Ltd, a company registered in Scotland (Company Number SC362025) and with its registered office at 37 Hill Street Lane North, Edinburgh EH2 3LQ.
      “Instruction” means the order from the Customer for the Work.
      “the Work” means all goods (including intermediate and finished product) and services supplied to the Customer as set out in the Project Confirmation. “Writing” includes any written paper document, any fax and any email correspondence.
    2. In this Agreement, unless the context requires otherwise:
      Words denoting any gender include all genders and words denoting the singular include the plural and vice versa; references to clauses are unless the contrary intention appears references to clauses of this Agreement; and the headings and sub-headings of this Agreement are inserted for convenience only and shall not affect the construction thereof.
  3. Customer Obligations:
    1. The Customer shall provide Hamlin Daniels with access to sufficient information to allow the design of the Work to be implemented, including without prejudice to the foregoing generality all necessary drafts, concepts, text, graphics, logos, photographs, images, illustrations and other materials in the correct format, shall use reasonable endeavours to ensure that the information is correct and shall update it when required to do so pursuant to this Agreement.
    2. Text is to be supplied in electronic format as standard text (.txt), MS Word (.doc) on CD-ROM, or via e-mail. Images which are supplied in an electronic format are to be provided in a format as prescribed by Hamlin Daniels via CD-ROM, or e-mail. Images must be of a quality suitable for use without any subsequent image processing’. Hamlin Daniels will inform the Customer if images supplied are deemed to be of unsuitable quality for print. Should the Customer nonetheless choose to retain the use of the image in question, Hamlin Daniels will not responsible for the quality of reproduction. Hamlin Daniels cannot be held responsible for the quality of any images which the Customer wishes to be scanned from printed materials. The Customer acknowledges that additional expenses may be incurred for any necessary action, including, but not limited to, photography and art direction, photography searches, media conversion, digital image processing, or data entry services.
    3. Should the Customer fail to provide the material required for the Work within three months of the date of this Agreement then Hamlin Daniels may at his sole discretion terminate the Agreement and recover from the Customer any costs, expenses, fees or other charges, which may have been incurred.
    4. Where preliminary material is sent to the Customer for final approval, the Customer shall check it carefully and notify Hamlin Daniels by e-mail or post of any errors or alterations. Hamlin Daniels shall use its reasonable endeavours to effect any changes so notified but reserves the right to charge extra if any of these alterations either go beyond the original Specification or are notified to Hamlin Daniels more than 5 working days after their supply to the Customer. Where notification of errors is either delayed in this way or does not occur at all before publication, Hamlin Daniels will not be liable in respect of any such errors. Hamlin Daniels cannot guarantee that any or all colours will be exactly replicated in the final version as published. Whilst Hamlin Daniels will prepare and check artwork as carefully as reasonably possible, it cannot accept responsibility for any errors caused by the Customer, Hamlin Daniels or suppliers once the work has been passed for production. The final responsibility for any errors or omissions will remain with the Customer.
    5. Unless otherwise requested by the Customer, Hamlin Daniels will scan and/or print images using its own professional judgement for colour balancing. Digital printing methods cannot guarantee exact matching to pantone references, however Hamlin Daniels can, on request, supply the Customer with one digital proof before publication. Further proofs will be subject to charge at an agreed rate.
    6. Where the Customer has engaged more than one supplier in the provision of brand identity, design and development services, the Customer shall deliver the brand identity or design to Hamlin Daniels upon request.
    7. The Customer shall not allow, permit or require the design to include any material which is indecent, obscene, immoral, offensive, defamatory or otherwise unlawful in any form whatsoever and should Hamlin Daniels at his sole discretion consider the Customer to be in breach of this condition or any part thereof, he may terminate the Agreement forthwith without compensation being due to the Customer.
    8. The Customer will be responsible for obtaining and holding all consents, licences, permits and other similar instruments applicable to material it supplies to Hamlin Daniels for incorporation into the Work, including without limitation copyrights, trademarks, logos, and all such similar instruments.
    9. If any items of work including prints and original files belonging to a Customer are not collected after 12 months of the requested work being done, Hamlin Daniels reserves the right to dispose of such material.
  4. Timescales:
    1. Hamlin Daniels will use reasonable endeavours to complete the Work by the Completion Date set out in the Project Confirmation or such other date as may be mutually agreed however any date for performance by Hamlin Daniels in relation to the Work whether stated in the Agreement or otherwise is only approximate and shall not be an essential term of the Agreement.
    2. Hamlin Daniels will have no liability for delays or omissions caused by a failure on the part of the Customer to perform its obligations in terms of this Agreement, nor for circumstances out with Hamlin Daniels’s control.
  5. Price and Payment:
    1. The Customer shall pay the Contract Price for the Work by way of an advance payment and subsequent payments as set out in the Project Confirmation unless otherwise agreed. The advance payment invoice will be sent to the Customer with the Project Confirmation. Work will commence upon receipt by Hamlin Daniels of the Customer’s payment in respect of said advance payment invoice unless otherwise agreed.
    2. Payment of the advance payment invoice will be due within 14 days of the invoice date unless otherwise agreed. Payment of subsequent invoices will be due within 30 days of the invoice date. The Customer agrees that timely payment of Hamlin Daniels’s invoices shall be an essential term of the Agreement. Payment is currently accepted by BACS or cheque. If the Customer’s cheque is returned by the bank as unpaid for any reason, Hamlin Daniels reserves the right to levy a “returned cheque” charge of £25. Accounts that have not been settled within 7 days of a final reminder will incur a late payment charge of 10% of the amount outstanding.
  6. Warranties:
    1. The Customer warrants and represents to Hamlin Daniels that every element of text, graphics, photos, designs, trademarks or other material supplied to Hamlin Daniels for inclusion in the Work is owned by the Customer, or that the Customer has permission from the rightful owner to use each of these elements and that Hamlin Daniels’s use of such material shall not infringe the intellectual property rights of any third party.
    2. Hamlin Daniels warrants and represents to the Customer that all works created by Hamlin Daniels pursuant to the Instruction will, unless otherwise stated in this Agreement, be original work and not subject to any intellectual property or other rights of any third party and that the Customer’s use of the Work shall not infringe the intellectual property rights of any third party.
  7. Intellectual Property Rights:
    1. All Customer-owned content and materials including all pre-existing Trademarks shall remain the sole property of the Customer or its respective suppliers and the Customer or its suppliers shall be the sole owner of all rights in connection therewith. The Customer hereby grants to Hamlin Daniels a non exclusive, non-transferable licence to use, reproduce, modify, display and publish the Customer-owned content and materials solely in connection with the Work.
    2. All third party-owned materials are the exclusive property of their respective owners. Hamlin Daniels shall inform the Customer of all third party materials (including any digital images) which may be required in connection with the Work and the Customer shall at its expense obtain any licences in respect of copyright or other intellectual property rights and any other releases or permissions which are required for all such third party-owned materials which are to be included in the Work.
    3. All preliminary or sample materials and original artwork which has been provided by Hamlin Daniels at any time remains the exclusive property of Hamlin Daniels, who retains all intellectual property rights therein. Such preliminary or sample materials and artwork shall be returned to Hamlin Daniels within thirty days of completion of the Work.
    4. Copyright and other intellectual property rights in the Work shall remain vested in Hamlin Daniels unless otherwise agreed on writing. Upon written confirmation by Hamlin Daniels that final payment in terms of the Agreement has been received, Hamlin Daniels shall assign to the Customer all ownership rights, including any copyrights, in and to any artworks or designs comprising the final artwork. Hamlin Daniels shall cooperate with the Customer and shall execute any additional documents reasonably requested by the Customer to evidence such assignment. The Customer shall have sole responsibility for ensuring that any artwork or designs intended to be a Trademark are available for use and registration and do not otherwise infringe the rights of any third party. The Customer hereby indemnifies and holds harmless Hamlin Daniels from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand or action by any third party alleging any infringement arising out of the Customer’s use and/or failure to obtain rights to use or use of the Trademark.
    5. No rights as described in sub-clause 7.4 above will pass to the Customer until all amounts due to Hamlin Daniels have been paid. Hamlin Daniels will have a lien over any service, products, data or information. Should final payment not be made in full within two months from the date of the relative invoice(s) the Customer agrees and accepts that it will forfeit its rights in terms of this Agreement.
  8. Confidentiality:
    1. Hamlin Daniels and the Customer shall keep confidential all information of the other party, whether designated as confidential or not, obtained under or in connection with the Agreement and shall not divulge the same to any third party without the written consent of the other party. The provisions of this clause shall not apply to any information in the public domain otherwise than by breach of the Agreement; or information obtained from a third party who is free to divulge the same.
    2. Hamlin Daniels may refer to the Agreement or to the fact that the Customer is Hamlin Daniels’s customer unless the Customer instructs otherwise in writing.
  9. Site Credits:
    Hamlin Daniels reserves the right to place a small credit on printed material and to use any design created as a ‘portfolio’ item displayed on Hamlin Daniels’s website / brochure / advertising.
  10. Termination:
    1. A party (‘the Initiating Party’) may terminate this agreement with immediate effect by written notice to the other party (‘the Breaching Party’) on or at any time after the occurrence of one or more of the following events:
      1. The Breaching Party committing a material breach of this agreement and failing to remedy the breach within 30 days starting on the day after receipt of notice from the Initiating Party giving details of the breach and requiring the Breaching Party to remedy it;
      2. The Breaching Party passing a resolution for winding up, a court of competent jurisdiction making an order for the Breaching Party’s winding up or the presentation of a petition for the Breaching Party’s winding up that is not dismissed within seven days, in each case other than for the purposes of solvent amalgamation or reconstruction in such manner that the entity resulting from the amalgamation or reconstruction effectively agrees to be bound by or assume the Breaching Party’s obligations under this agreement;
      3. The making of an administration order in relation to the Breaching Party or the appointment of a receiver over, or an encumbrancer taking possession of or selling any asset of, the Breaching Party;
        or
      4. The Breaching Party making an arrangement or composition with his creditors generally or making an application to a court of competent jurisdiction for protection from his creditors generally.
    2. Hamlin Daniels shall have the right to terminate this Agreement with immediate effect by notice in writing to the Customer if the Customer fails to make any payment when it becomes due.
    3. Should the Customer wish to terminate in whole or in part the Instruction prior to completion the Customer shall be liable for all work carried out up to the point of termination and shall be invoiced accordingly.
    4. Hamlin Daniels shall be entitled to retain any advance payment and other payments which may have been made on a quantum merit basis for work carried out in relation to the Work up to the time of termination for whatever reason.
  11. No Waiver:
    Failure or delay by either party in enforcing or partially enforcing any provision of the Agreement will not be construed as a waiver of any of its rights under the Agreement. Any waiver by a party of any breach of, or any default under, any provision of the Agreement by the other party will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Agreement.
  12. Force Majeure:
    Hamlin Daniels shall be not be liable for any delay or failure to perform any of its obligations under this Agreement if delay or failure results from events or matters beyond its reasonable control, including but not limited to, acts of God, fire, lightening, explosion, war, disorder, accidents, flood, industrial dispute (whether or not involving its employees), failures or interruptions of electricity supplies, weather of exceptional severity, acts or omissions of local or central government or other authorities, the acts or omissions of any Internet Service Provider, or the delay or failure in manufacture, production or supply by third parties of equipment or services, and it shall be entitled to a reasonable extension of its obligations after notifying the Customer of the nature and extent of such events.
  13. Indemnity:
    1. The Customer hereby indemnifies and holds harmless Hamlin Daniels against all claims, demands, losses, damages, costs or expenses howsoever arising incurred by Hamlin Daniels in connection with the Agreement as a result of a breach by the Customer of any provision of this Agreement, law or regulation and/or as a result of any third party legal action or threatened action in relation to Intellectual Property Rights infringement whatsoever and howsoever arising. Without prejudice to the foregoing generality:
      1. The Customer indemnifies and holds harmless Hamlin Daniels from any and all claims, demands, losses, damages, costs or expenses arising out of the Customer’s failure to obtain copyright or other intellectual property rights or other releases or permissions with respect to content or materials included in the Work; and
      2. The Customer indemnifies and holds harmless Hamlin Daniels against any misrepresentation, whether intentional or unintentional, supplied to Hamlin Daniels orally or in writing in connection with this Agreement.
  14. Limitation of Liability:
    1. Notwithstanding any other provision in this agreement, Hamlin Daniels’s liability to the Customer for death or injury resulting from its own negligence or that of his employees, agents or sub-contractors shall not be limited.
    2. Hamlin Daniels’s entire liability to the Customer in respect of any breach of its contractual obligations, any breach of warranty, any representation, statement or delictual act or omission including negligence arising under or in connection with this Agreement shall be limited to an amount equal to the Contract Price.
    3. Hamlin Daniels shall not be liable to the Customer for any indirect or consequential loss the Customer may suffer, even if the loss is reasonably foreseeable or Hamlin Daniels has been advised of the possibility of the Customer incurring it.
    4. Without prejudice to the foregoing generalities, Hamlin Daniels will not be held responsible for any losses arising from the supply by the Customer or others of incorrect or incomplete information, or the Customer’s or others’ failure to supply any appropriate information or the Customer’s failure to act on the advice of Hamlin Daniels or respond promptly to communications from Hamlin Daniels or other relevant authorities.
    5. The Customer’s property and all property supplied to Hamlin Daniels by or on behalf of the Customer shall while in the possession of Hamlin Daniels or in transit to or from the Customer, be deemed at the Customer’s risk unless otherwise agreed in writing. Hamlin Daniels’s liability to the Customer or any other party for the loss including theft, or destruction or damage to any Customer property whilst in the possession of Hamlin Daniels will be limited to the replacement cost of the actual material.
  15. Assignation:
    1. Subject to sub-clause 15.2, neither party shall assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this agreement without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed.
    2. Hamlin Daniels may sub-contract elements of the Work at Hamlin Daniels’s sole discretion.
  16. Customer Satisfaction:
    Satisfaction with the quality of the Services provided is of paramount importance to us. If at any time you would like to discuss with us how our service to you could be improved, or if you are dissatisfied with the service you are receiving, please let us know, by telephoning 0131 225 5113 or emailing us at enquiries@hamlindaniels.co.uk. We undertake to look into any complaint carefully and promptly and to do all we can to explain the position to you. If you feel that we have given you a less than satisfactory service, we undertake to do everything reasonable to address your concerns. Should matters not be resolved to your satisfaction and any dispute arise in connection with the Agreement parties shall attempt to settle it by Mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure.
  17. Remedies:
    The rights and remedies provided for by this agreement are cumulative with and not exclusive of any rights or remedies provided by law.
  18. Notices:
    1. Any notice, demand or other communication given or made under or in connection with the matters contemplated by this agreement shall be deemed to have been duly given and received:
      1. If personally delivered, upon delivery at the address of the relevant party;
      2. If sent by first class post, two business days after the date of posting;
      3. If by email, when sent;
      provided that if, in accordance with the above provision, any notice, demand or other communication would otherwise be deemed to be given or made after 1700 hours, it shall be deemed to be given or made at the start of the next business day.
    2. A party may notify the other party to this Agreement of a change to its name, relevant addressee, address or fax number for the purposes of the above clause provided that such notification shall only be effective on:
    1. The date specified in the notification as the date on which the change is to take place, or
    2. If no date is specified or the date specified is less than five business days after the date on which notice is given, the date falling five business days after the notice is given.
  19. Entire Agreement:
    This Agreement set out the entire understanding of the parties with respect to their subject matter and replace any prior agreements or understandings or representations (unless fraudulent), whether written or oral.
  20. Jurisdiction:
    This Agreement shall be governed by and construed in accordance with the laws of Scotland the courts of which shall have non-exclusive jurisdiction.