CONDITIONS OF BUSINESS (PURCHASER)

Updated: 7 November 2012

All and any business undertaken by PERGALI is relation to the Services for the Purchaser is subject to these Conditions of Business which take the place of any other terms or conditions sought to be imposed by or on behalf of the Purchaser and form the entire agreement between the parties. They may not be altered or varied without the written approval of a director of PERGALI and an authorised representative of the Purchaser.

  1. DEFINITIONS
    • 1.1. PERGALI Limited (“PERGALI”) is an independent contractor whose registered office is 23 Bellfield Avenue, Harrow Weald, Middlesex HA3 6ST, United Kingdom
    • 1.2. The Purchaser (“Purchaser”) is the individual, association, corporation or consortium which agrees to be bound by these Conditions of Business
    • 1.3. The Quotation (hereinafter called “the Quotation”) is the detailed proposal of fees and services to which these Conditions of Business apply
    • 1.4. The Services (“Services”) detailed in the Quotation can include, but not be limited to; design, printing, advertising, public relations, copywriting, direct marketing, business consultancy, website development, event management which PERGALI may provide to the Purchaser
  2. INDEPENDENT CONTRACTOR STATUS
    • 2.1. PERGALI is engaged as an independent contractor. Nothing herein will be deemed or construed to create a joint venture, partnership, agency or employee/employer relationship for any purpose
    • 2.2. PERGALI has no authority to and will not make any representations or incur any liability or cost or enter into any contracts or other arrangements involving the Purchaser in financial or other commitments without the Purchaser’s express prior approval in writing
    • 2.3. PERGALI is solely responsible for payment of all taxes and national insurance contributions incurred by PERGALI and for all other liabilities of a statutory nature which become payable in respect of fees and expenses due to PERGALI hereunder or otherwise in consequence of performance of the Services and shall account to H.M. Revenue & Customs for all VAT paid to PERGALI by the Purchaser.
    • 2.4. PERGALI represents and warrants that neither PERGALI nor its employees or agents is under any pre-existing obligation or obligations inconsistent with the provisions of these Conditions of Business
  3. PERGALI’S APPOINTMENT
    • 3.1. PERGALI will not commence the Services until the Quotation has been signed by duly authorised signatory of the Purchaser, or written approval is provided and has been delivered personally, by first class letter or email transmission
    • 3.2. PERGALI’s appointment to provide the Services shall commence on the date when PERGALI commences provision of the Services and shall continue until all Services detailed in the Quotation have been completed
  4. PERGALI’S STANDARDS OF SERVICE
    • 4.1. PERGALI undertakes to use its skill and expertise to provide the Purchaser with a high quality service which meets the brief agreed with the Purchaser, however, no warranty is given as to the commercial performance and/or effectiveness of the Services detailed in the Quotation
    • 4.2. If for any reason the Services do not meet the Purchaser’s complete satisfaction the Purchaser must notify PERGALI in writing within ten working days of the matter coming to the attention of the Purchaser, setting out in sufficient detail the matter complained of or the Purchaser will be deemed to be satisfied with the quality of the Services
  5. PERGALI’S UNDERTAKINGS
    • 5.1. PERGALI shall at all times in connection with performance of the Services:
      1. perform the Services in a manner consistent with ethical and professional standards;
      2. perform the Services with all reasonable skill and care and in a professional manner; and
      3. perform and complete the Services in a timely and cost effective manner
    • 5.2. PERGALI warrants that designs, documentation, business strategies and other materials or information created by it in performance of the Services shall be original works of PERGALI, its employees or contractors and will not infringe any intellectual property rights or any other right whatsoever of any third party
  6. THE PURCHASER’S UNDERTAKINGS
    • 6.1. The Purchaser shall provide PERGALI with all documents or other materials and data or other information necessary for the completion of the Services, in sufficient time to enable PERGALI to provide the Services in accordance with any timetable or other target for progress or completion agreed between the parties
    • 6.2. The Purchaser shall be responsible for the content of all documents or other materials and shall ensure the accuracy of all data or other information provided to PERGALI in the course of providing the Services
    • 6.3. The Purchaser shall ensure that PERGALI is accorded sufficient access to any of the Purchaser’s key decision makers, information, data or personnel that is reasonably necessary for the completion of the Services
  7. AUTHORITY
    • 7.1. The Purchaser’s written approval of copy and selected production materials will be PERGALI’s authority to purchase production materials and prepare artwork and proofs, and the Purchaser’s written approval of proofs will be authority to publish online or offline as requested; further, it is understood by the parties that upon written approval to proceed all responsibility for omissions and/or errors passes from PERGALI to the Purchaser and that all fees for Services remain due and payable
    • 7.2. The Purchaser’s written approval of audio visual scripts and/or story-boards will be PERGALI’s authority to make production contracts and engage performers and the Purchaser’s written approval of films and recordings will be authority to transmit
    • 7.3. The Purchaser’s written approval of schedules and estimates will be PERGALI’s authority to make reservations and contract for space, time and other facilities under the terms and conditions required by media or suppliers
    • 7.4. Prior to the issue of any material PERGALI produces on behalf of the Purchaser which is an investment advertisement as defined by the Financial Services and Markets Act 2000; the Purchaser will ensure that the material has been approved by a person authorised under the Act. PERGALI is not an authorised person
    • 7.5. The Purchaser’s written approval of event plans and associated activities will be PERGALI’s authority to make venue contracts and contracts with external suppliers and performers associated with the event under the terms and conditions required by these suppliers
    • 7.6. Wherever the Purchaser’s written approval is requested under this (or any other) conditions, such approval must not be unreasonably withheld or delayed
  8. AMENDMENTS
    • 8.1. The Purchaser may request PERGALI in writing to change, reject, cancel or stop any and all plans, schedules or work in progress and PERGALI shall take all reasonable steps to comply provided that PERGALI can do so within its contractual obligations to suppliers and other third parties, and provided that PERGALI can recover the cost from the Purchaser of any exceptional wastage of work and for material already utilised
    • 8.2. PERGALI’s Quotation accounts for one round of Purchaser amendments followed by a subsequent round of minor updates; it will be necessary for the Purchaser to reimburse PERGALI for any reasonable extra charges which it accrues as a result of further Purchaser amendments
    • 8.3. In the event of any cancellation by the Purchaser it will be necessary for the Purchaser to reimburse PERGALI for any reasonable internal or external changes or reasonable expenses incurred on the Purchaser’s behalf and to which PERGALI is committed including third party contracts and also to pay PERGALI’s fee reasonably incurred covering the work already carried out on behalf of the Purchaser
  9. CHARGES
    • 9.1. The fees relating to the Services commissioned by the Purchaser will be those detailed in the Quotation
    • 9.2. PERGALI will bear the cost of normal correspondence, telephone and IT expenses incurred by it in carrying out the Services detailed in the Quotation but PERGALI shall be entitled to charge the Purchaser expenses which will be reimbursed at cost; mileage will be charged at £0.45 (45p) per mile. All rail travel or air travel expenses shall be included as outlays with relevant supporting documentation, including VAT invoice, from the relevant supplier. Foreign travel will incur all relevant costs for economy class travel
  10. TERMS OF PAYMENT
    • 10.1. PERGALI’s invoices are payable within 7 days of the date on which they are rendered. Accounts in respect of agreed PR and consultancy time is invoiced in advance on the 1st of each month and is payable within 30 days of the date on which they are rendered. New client relationships will require 50% of the first invoice to be settled in advance
    • 10.2. Some suppliers, particularly new media companies, market research organisations and exhibitions contractors, require payment in advance or at various stages of production. The Purchaser agrees to pay assocaietd invoices in respect of such services upon presentation
    • 10.3. Media and new media invoices in accordance with the agreed media schedule will be presented to the Purchaser and must be paid immediately upon presentation
    • 10.4. All postage costs for direct mail and electronic email distribution activity must be paid by the Purchaser prior to e/mailing
    • 10.5. PERGALI invoices or part thereof not subject to dispute which are not paid by the due date may be subject to interest at 4% over HSBC’s base rate from the date of due payment until the date of actual payment
    • 10.6. PERGALI reserves the right to suspend work on any project commissioned by the Purchaser in the event that any invoices shall remain unpaid after the due date for payment
  11. OWNERSHIP
    • 11.1. Copyright and any and all other intellectual property and other rights existing in the Services addressed in the Quotation will vest solely in the Purchaser absolutely upon payment. PERGALI hereby assigns with full title guarantee all intellectual property rights, including copyright, in the Services addressed in the Quotation to the Purchaser to the extent of its authority
    • 11.2. At the request and expense of the Purchaser PERGALI will sign such documents and do such things reasonably necessary in the opinion of the Purchaser to enable the Purchaser to obtain, defend and enforce its rights in the Services addressed in the Quotation
    • 11.3. The Purchaser acknowledges, however, that PERGALI’s ability to conclude such negotiations will in some circumstances be subject to clearance of third party rights arising under standard trade agreements or other trading arrangements or as a manner of general law. In particular:
      1. Designers, illustrators and photographers retain the copyright in any work commissioned by PERGALI on behalf of the Purchaser. All original illustrations and original digital images/transparencies/negatives/files and the rights therein remain the designer/illustrator/photographer’s property unless negotiated otherwise
      2. It is further recognised that PERGALI may purchase non-exclusive stock images and audio visual materials as part of the Services addressed in the Quotation and that title and ownership remain with the chosen photographic/AV agency unless said purchase is made on an exclusive basis, which will be subject to increased costs and further commercial arrangements with the photographic/AV agency
    • 11.4. PERGALI shall retain the copyrights in all material contained in any presentation/proposal made in competitive tender with any other third party in the event of said presentation/proposal being unsuccessful or any other material produced speculatively by PERGALI not being used, whether or not in competitive tender with any other third party
    • 11.5. Upon termination of the Services all unused or unpublished plans and ideas prepared by PERGALI, whether the subject of copyright or not, shall remain PERGALI’s property and shall not be used by the Purchaser subsequently, regardless of whether or not the physical embodiment of any creative or consulting work is in the Purchaser’s possession in the form of copy, artwork, presentations or other media, electronic or otherwise
  12. DELIVERY
    • 12.1. Any dates quoted for delivery of the Services addressed in the Quotation are approximate only and PERGALI shall not be liable for any loss or damage of any kind whatsoever suffered by the Purchaser from any delay from whatsoever cause arising, nor will any delay entitle the Purchaser to cancel or rescind the commitment to purchase the Services
  13. PRICE
    • 13.1. PERGALI reserves the right to increase the Quotation price if PERGALI sub-contracts to a Third Party and for whatever reason the Third Party increases its prices to PERGALI. In this case PERGALI will only increase its price to the Purchaser by the amount of the increase charged by the Third Party to PERGALI
    • 13.2. Where the Quotation for Services is based on information supplied by the Purchaser and that information is subsequently changed or proves to be incorrect, PERGALI reserves the right to increase the price of the Services or cancel the order at its absolute discretion
  14. PERSONNEL
    • 14.1. PERGALI may obtain or provide extra resources (whether in the form of contractors or personnel) of the requisite standard in order to ensure that the Services are completed in accordance with the Quotation
    • 14.2. The Purchaser agrees and undertakes that at no time during the delivery of the Services or within one year of completion of the Services will the Purchaser solicit or offer employment and/or remuneration to any of the employees or sub-contractors of PERGALI
  15. CONFIDENTIALITY
    • 15.1. During the course of performing the Services PERGALI will have access to information that is confidential and proprietary to the Purchaser which is either designated as such or by its nature can be reasonably regarded as confidential or proprietary (“Confidential Information”).
    • 15.2. PERGALI undertakes:
      1. to use the Confidential Information only in connection with the performance of the Services and for no other purposes;
      2. not to use the Confidential Information in any manner competitive with or detrimental to the interests of the Purchaser;
    • 15.3. The above restrictions, which will survive completion of the services for one year and will not apply to information which (i) can be shown to have been independently created by PERGALI without access to or use of the Confidential Information, (ii) is or becomes publicly available through no default of PERGALI, or (iii) is required to be disclosed by law
  16. DATA PROTECTION ACT STATEMENT
    • 16.1. The Purchaser confirms that they are aware of all their obligations and responsibilities which may arise under the Data Protection Act 1998 and indemnifies PERGALI from all claims, losses and liabilities which the Seller may suffer or incur as a result of the Purchaser’s failure to comply with the Data Protection Act 1998.
  17. LIMITATION OF LIABILITY
    • 17.1 The Services have been negotiated and agreed by PERGALI with the Purchaser in the context of information provided by the Purchaser as to the Purchaser’s particular needs and requirements. The Services have been prepared and quoted accordingly. Therefore:
      1. PERGALI shall have no liability to the Purchaser for any delay, loss, damage, costs, expenses or other claims for compensation arising from any information or instructions supplied by the Purchaser which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non- arrival, or any other fault of the Purchaser;
      2. PERGALI shall have no liability to the Purchaser for any loss, damage, costs, expenses or other claims for compensation arising from the Purchaser making use of the Services for any purpose not clearly disclosed to PERGALI or from the Purchaser allowing a third party to make use of the output of the Services;
      3. PERGALI shall not be liable to the Purchaser by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, other than under the express terms of the Quotation, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of PERGALI, its employees or agents or otherwise) which arises out of or in connection with the provision of the Services or its use by the Purchaser.
  18. INDEMNIFICATION
    • 18.1 To the extent allowed by English law and excluding any liability for death personal injury or property damage caused by or contributed to by PERGALI in the conduct of the Services, where PERGALI has acted in good faith and with due professional care, the Purchaser shall indemnify PERGALI against any costs, damages and other charges, including legal costs on a full indemnity basis falling upon or borne by it arising from any default or neglect on the part of the Purchaser
    • 18.2 PERGALI shall take out and maintain full and comprehensive insurance policies for employers’ liability and public liability in respect of the provision of the Services under this agreement. PERGALI’s Public Liability insurance cover shall be for not less than £5M for any one claim or series of claims arising from the same event
  19. FORCE MAJEURE
    • 19.1 Neither party shall be liable for any delay or failure to meet its obligations (other than a payment obligation) under this Quotation due to any cause outside its reasonable control including (without limitation) acts of God, war, riot, malicious acts of damage by third parties, civil commotion, strike, lockout or industrial dispute by a third party, unavoidable power failure or fire.
  20. GENERAL
    • 20.1 All notices will be in writing and will be sent to the address of the recipient shown on the Quotation, or any other address the recipient may designate by notice given in accordance with this Clause. Notices may be delivered personally, by first class pre-paid letter or receipted email transmission
    • 20.2 This Quotation is personal to the parties and neither party may assign, sub-contract or otherwise transfer any rights or obligations under this Quotation without the express written approval of the other
    • 20.3 This Quotation constitutes the only agreement between the parties hereto. It shall therefore cancels, supersedes and replaces all prior agreements, express or implied, between the parties. This agreement and the terms and conditions of sales provided for herein may be modified only by written agreement subscribed by both parties
    • 20.4 If any part of this Quotation is found by a court of competent jurisdiction or other competent authority to be invalid, unlawful or unenforceable then such part will be severed by the remainder of this Quotation, which will continue to be valid and enforceable to the fullest extent permitted by law
    • 20.5 The parties acknowledge that no reliance is placed on any representation made but not embodied in this Quotation, but neither party excludes liability for any fraudulent misrepresentation. Except as otherwise permitted by this Quotation, no change to its terms will be effective unless it is in writing and signed by persons authorised on behalf of both parties
  21. GOVERNING LAW
    • 21.1 This Quotation will be construed in accordance with and be governed by English law and each party agrees to submit to the exclusive jurisdiction of the English courts
    • 21.2 The parties shall at all times comply with local regulations applicable to this Quotation. In the event this Quotation or its performance is determined to be illegal or contrary to the laws, regulations or acts, this Quotation shall be null and void unless both the parties shall use their best endeavours to modify the Quotation to comply with such law, regulations, act or direction

CONDITIONS OF BUSINESS (SUPPLIER)

Updated: 27 November 2012

All and any business undertaken by the Supplier in relation to the Services for PERGALI is subject to these Conditions of Business which take the place of any other terms or conditions sought to be imposed by or on behalf of the Supplier and form the entire agreement between the parties. They may not be altered or varied without the written approval of a director of PERGALI.

  1. THE SUPPLIER’S SERVICES
    • 1.1. From time to time the PERGALI requires external support and the provision of services (the “Services”) including but not limited to; design, copywriting, photography, programming, media scheduling, media purchasing, filming, animation, printing, website development, product design, market research, sponsorship, event management, audio visual services, social media, media training, public relations, investor relations, direct marketing, fulfillment, email distribution, programming, advisory services and training services.
    • 1.2. The terms of this Agreement will apply to all Services provided by the Supplier to PERGALI during the currency of this Agreement. PERGALI is not obliged to provide the Supplier with a minimum or any number of orders over a period of time.
    • 1.3. This Agreement will be deemed to have commenced upon the date of this agreement and will continue until terminated in accordance with the termination clause of this Agreement, or by the conclusion of the provision of Services by Supplier or by mutual consent.
    • 1.4. The Supplier shall ensure that the Services are provided in accordance with the terms of this Agreement.
  2. INDEPENDENT SUPPLIER STATUS
    • 2.1. The Supplier is engaged as an independent Supplier. Nothing herein will be deemed or construed to create a joint venture, partnership, agency or employee/employer relationship for any purpose.
    • 2.2. The Supplier has no authority to and will not make any representations or incur any liability or cost or enter into any contracts or other arrangements involving PERGALI in financial or other commitments without PERGALI’s express prior approval in writing.
    • 2.3. The Supplier is solely responsible for payment of all taxes and national insurance contributions incurred by the Supplier and for all other liabilities of a statutory nature which become payable in respect of fees and expenses due to the Supplier hereunder or otherwise in consequence of performance of the Services. The Supplier will, if requested by PERGALI at any time, promptly submit evidence of compliance with the provisions of this Clause in a form and manner reasonably satisfactory to PERGALI.
    • 2.4. The Supplier represents and warrants that s/he/it is under any pre-existing obligation or obligations inconsistent with the provisions of this Agreement.
  3. FEES AND EXPENSES
    • 3.1. PERGALI will pay to the Supplier, subject to the provisions of this Agreement, an agreed fee subject to satisfactory performance of the Services. The Supplier will not be entitled to any other compensate on or remuneration for such Services.
    • 3.2. The Supplier will submit invoices for the Services upon completion of any project or submit interim invoices by agreement.
    • 3.3. The Fee and expenses are payable within 30 days following receipt of a correct and properly due invoice and supporting documentation. PERGALI reserves the right to offset any losses and liabilities incurred by PERGALI as a result of any actions, default or unsatisfactory performance by the Supplier against any Fee payable under this Agreement.
    • 3.4. The Supplier will maintain up to date and accurate records relating to the performance of the Services.
  4. SUPPLIER’S UNDERTAKINGS
    • 4.1. The Supplier shall at all times in connection with performance of the Services:
      1. comply with all applicable laws and regulations of any jurisdiction in which s/he/it performs the Services;
      2. perform the Services in a manner consistent with ethical and professional standards;
      3. perform the Services with all reasonable skill and care and in a professional manner; and
      4. perform and complete the Services in a timely and cost effective manner.
    • 4.2. The Supplier will not use the name of PERGALI or its clients in any promotional materials or other communications in the public domain without PERGALI’s prior written consent.
    • 4.3. The Supplier warrants that designs, documentation, software and other materials or information created by him/her/it in performance of the Services will not infringe any intellectual property rights or any other right whatsoever of any third party.
    • 4.4. During the term of this Agreement, the Supplier will advise PERGALI if the provision of Services is or may become in conflict with the business activity PERGALI’s client, the Supplier shall notify PERGALI immediately and shall take such action as PERGALI may reasonably deem necessary, including immediate termination of this Agreement, to remove any conflict.
    • 4.5. The Supplier agrees and undertakes that at no time during the Agreement or within one year of termination of the Agreement will the Supplier solicit or offer employment and/or remuneration to any of the employees or representatives of PERGALI either directly or via a connected third party.
    • 4.6. The Supplier agrees and undertakes that at no time during the Agreement or within one year of termination of the Agreement will the Supplier solicit clients introduced directly by PERGALI.
    • 4.7. The Supplier agrees and undertakes that during the Agreement he/she/it will provide PERGALI with copies of all direct correspondence between the Supplier clients of PERGALI.
  5. CONFIDENTIALITY
    • 5.1. During the course of performing the Services the Supplier will have access to information that is confidential and proprietary to PERGALI and its clients which is either designated as such or by its nature can be reasonably regarded as confidential or proprietary (“Confidential Information”).
    • 5.2. The Supplier undertakes:
      (a) to use the Confidential Information only in connection with the performance of the Services and for no other purposes;
      (b) not to use the Confidential Information in any manner competitive with or detrimental to the interests of PERGALI or its client(s);
      (c) not to copy, in whole or in part, any materials containing the Confidential Information without PERGALI’s prior written consent.
    • 5.3. The above restrictions, which will survive termination or expiry of this Agreement for any reason, will not apply to information which (i) can be shown to have been independently developed by the Supplier without access to or use of the Confidential Information, (ii) is or becomes publicly available through no default of the Supplier, or (iii) is required to be disclosed by law.
    • 5.4. Unless agreed otherwise, the Agreement is confidential to the parties and the nature of relationship shall not be disclosed to any third party or via any public domain media unless agreed in writing.
  6. OWNERSHIP
    • 6.1. Copyright and any and all other intellectual property and other rights existing now or in the future in all works associated with the specific Services for PERGALI and/or its client produced by the Supplier (whether individually, collectively or jointly with PERGALI or others and on whatever media) prior, during the course of, or incidental to, performing the Services will vest solely in PERGALI absolutely upon their creation. The Supplier hereby assigns with full title guarantee all intellectual property rights, including copyright, in the specific Services to PERGALI as applicable.
    • 6.2. At the request and expense of PERGALI the Supplier will sign such documents and do such things reasonably necessary in the opinion of PERGALI to enable PERGALI to obtain, defend and enforce its rights in the Project Materials.
    • 6.3. The provisions of this Clause 6 will survive the expiration or termination of this Agreement for any reason.
  7. TERMINATION
    • 7.1. Either party may at any time and without cause terminate this Agreement forthwith by written notice to the other.
    • 7.2. Either party may terminate this Agreement forthwith on written notice if (a) the other party defaults in the performance of its obligations under this Agreement and such default is not remedied within 14 days (or such longer period agreed by the parties) following receipt of such notice or (b) the other party begins, consents to, or is otherwise subject to, proceedings under the laws relating to receivership, insolvency, bankruptcy, the relief of creditors or takes or suffers any similar act in consequence of debt.
    • 7.3. Termination will not affect the rights of either party under the Agreement which may have accrued up to the date of termination.
  8. INDEMNIFICATION
    • 8.1. To the extent allowed by English law where PERGALI has acted in good faith and with due professional care, the Supplier shall indemnify PERGALI against any costs, damages and other charges, including legal costs on a full indemnity basis falling upon or borne by him/her/it arising from any default or neglect on the part of the Supplier.
  9. GENERAL
    • 9.1. All notices to be given under this Agreement will be in writing and will be sent to the address of the recipient shown on the front page of this Agreement, or any other address the recipient may designate by notice given in accordance with this Clause. Notices may be delivered personally, by first class pre-paid letter or email transmission.
    • 9.2. This Agreement is personal to the Supplier and the Supplier may not assign, sub-contract or otherwise transfer any rights or obligations to any third party. PERGALI may assign or transfer any of its rights and obligations on written notice.
    • 9.3. No delay or failure by either party to exercise any of its powers, rights or remedies under this Agreement will operate as a waiver of them, nor will any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them. Any waiver to be effective must be in writing.
    • 9.4. If any part of this Agreement is found by a court of competent jurisdiction or other competent authority to be invalid, unlawful or unenforceable then such part will be severed by the remainder of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law.
    • 9.5. The Supplier acknowledges that no reliance is placed on any representation made but not embodied in this Agreement, but neither party excludes liability for any fraudulent misrepresentation. The printed terms of any purchase order or other correspondence and documents issued by or on behalf of the Supplier in connection with this Agreement will not apply unless expressly accepted in writing by PERGALI. Except as otherwise permitted by this Agreement, no change to its terms will be effective unless it is in writing and signed by persons authorised on behalf of both parties.
  10. GOVERNING LAW
    • 10.1. This Agreement will be construed in accordance with and be governed by English law and each party agrees to submit to the exclusive jurisdiction of the English courts.