1.
Interpretation
1.1
In these Conditions the following words have the following meanings:
Conditions: these
terms and conditions.
Contract: the contract created by the Customer's acceptance
of a Quote for Services by the Supplier under clause 2.1.
Contract
Price:
The price for the provision of Services, as set out in (or calculated in
accordance with the rate set out in) the Quote.
Contract
Documents: these Conditions and the terms of the Quote accepted by the Customer.
Customer: the person, firm or
company who purchases Services from the Supplier.
Customer's Equipment:
any equipment or materials provided by the Customer and used directly or
indirectly in the supply of the Services.
Customer's Manager:
the Customer's manager for the Services, appointed in accordance with clause 5.1.
Deliverables: all documents, products
and materials developed by the Supplier and delivered to the Customer pursuant
to the provision of the Services in any form, including computer programs,
data, reports and specifications (including drafts).
In-put Material: all documents,
information, content and materials provided by the Customer relating to the
Services, including computer programs, website content, data, reports and
specifications.
Intellectual Property Rights:
all patents, copyright and related rights, trade marks, domain names, rights in
goodwill, registered and unregistered design rights, database right, topography
rights, moral rights, rights in confidential information (including know-how
and trade secrets) and any other intellectual property rights, in each case
whether registered or unregistered and including all applications for and
renewals or extensions of such rights, and all similar or equivalent rights or
forms of protection in any part of the world.
Pre-existing Materials:
all documents, information and materials provided by the Supplier relating to
the Services which existed prior to the commencement of the Contract including
computer programs, data, reports and specifications.
Quote: a quote issued by the Supplier for the supply of
Services.
Services: The services to be
provided by the Supplier under the Contract as set out in the
Quote together with any other services which the Supplier provides or
agrees to provide to the Customer.
Supplier: Aiden Clarke, t/a The
Holt Studio, of 1 Holtby Grove, High Raincliff, Scarborough, YO12 5DA.
1.2
References to clauses are to the clauses of these Conditions. Words in
the singular shall include the plural and vice versa.
1.3
Where the words Òinclude(s)Ó,
ÒincludingÓ or Òin particularÓ
are used in these Conditions, they are deemed to have the words Òwithout limitationÓ following them and
where the context permits, the words ÒotherÓ
and ÒotherwiseÓ are illustrative
and shall not limit the sense of the words preceding them.
2.
The contract
2.1
A Quote may be accepted by the Customer at any time during its period of
validity by signing and returning a copy to the Supplier. By accepting the
Quote the Customer appoints the Supplier to supply the Services to it in
consideration of the Contract Price and subject to the terms of the Contract
Documents. If the Customer does not sign and/or return a copy of the Quote, it
will nevertheless be deemed to have accepted the Quote if, after receipt of the
Quote, it accepts the provision of any (or any part of) the Services by the
Supplier.
2.2
These Conditions shall:
(a)
apply to and be incorporated into the Contract; and
(b)
prevail over any inconsistent terms or conditions contained, or referred
to, in the Customer's purchase order, confirmation of order, acceptance of a
quotation or specification, or implied by law, trade custom, practice or course
of dealing.
2.3
Quotes are given by the Supplier on the basis that no Contract shall
come into existence except in accordance with clause 2.1. Any Quote is valid
for a period of 30 days from its date, provided that the Supplier has not
previously withdrawn it. The appointment of the Supplier will commence upon
receipt by the Supplier of a Quote signed by the Customer (or alternatively
upon commencement of the Services) and will last until completion of the
Services unless terminated in accordance with these Conditions.
2.4
In the event of any inconsistency between the terms of these Conditions
and the Quote, the terms of the Quote will prevail.
3.
services
3.1
To the extent that the Quote provides no timescale for the completion of
Services, the Supplier and the Customer may agree any such timescales in
writing, but any such timescales will be not be binding on the Supplier and
time for completion of the Services shall not be of the essence of the
Contract.
3.2
Where the Services include website design and development services, the
following provisions will also apply:
(a)
The parties may agree a project plan and acceptance tests in writing
which, when agreed, will be signed on behalf of both parties and will become
part of the Contract Documents;
(b)
The Supplier may include the statement "Designed by The Holt Studio"
on the home page of the Website in a form to be agreed;
(c)
Any third party software supplied pursuant to the provision of the
Services is supplied in accordance with the relevant licensorÕs standard terms.
4.1
The Supplier shall use reasonable endeavours to provide the Services, and
to deliver the Deliverables to the Customer, in accordance in all material
respects with the Quote. The Supplier will perform the Services with reasonable
care and skill.
4.2
The Supplier shall use all reasonable endeavours to observe all health
and safety rules and regulations and any other reasonable security requirements
that apply at the Customer's premises and that have been communicated to it by
the Customer, provided that it shall not be liable if, as a result of such
observation, it is in breach of any of its obligations under this Contract.
(a)
co-operate with the Supplier in all matters relating to the Services and
appoint the Customer's Manager, who shall have the authority contractually to
bind the Customer on matters relating to the Services;
(b)
provide, for the Supplier, its agents, sub-contractors and employees, in
a timely manner and at no charge, such access to the Customer's premises, data,
servers and other facilities as may be reasonably required by the Supplier;
(c)
provide, in a timely manner, access to such In-put Material and other
information as the Supplier may request or reasonably require and ensure that
it is accurate in all material respects;
(d)
ensure that all Customer's Equipment is suitable for the purposes for
which it is to be used in relation to the Services and conforms to all relevant
UK standards or requirements failing which the Supplier will have the right to
reject such equipment and charge additional costs incurred in obtaining any
replacement equipment.
(e)
obtain and maintain all necessary licences and consents and comply with
all relevant legislation in relation to the Services, and the use of In-put
Material insofar as such licences, consents and legislation relate to the
Customer's business, premises, staff and equipment in all cases before the date
on which the Services are to start;
(f)
ensure that any In-put Material to be used in performing the Services
does not infringe any applicable law or third party Intellectual Property
Rights;
5.2
If the Supplier's performance of its obligations under the Contract is
prevented or delayed by any act or omission of the Customer, its agents,
sub-contractors or employees, or by any failure to comply with its obligations
in clause 5.1 above, the Supplier shall not be liable for any costs, charges or
losses sustained or incurred by the Customer arising directly or indirectly
from such prevention, delay or failure.
5.3
The Customer shall be liable to pay to the Supplier, on demand, all
reasonable costs, charges or losses sustained or incurred by the Supplier
(including any direct, indirect or consequential losses) arising directly or
indirectly from the Customer's fraud, negligence, failure to perform or delay
in the performance of any of its obligations under the Contract subject to the
Supplier confirming such costs, charges and losses to the Customer in writing.
6.1
If at any time the Customer requests a change to the scope or execution
of the Services the Customer will provide such details of the requested changes
to the Supplier as the Supplier may require and, if the Supplier is willing and
able (in its absolute discretion) to provide such amended Services, the
Supplier will issue an amended Quote setting out the amended Services and an
amended Contract Price.
6.2
If the Customer wishes the Supplier to proceed with the change, it shall
sign and return to the Supplier the amended Quote, whereupon the amended Quote
will become the applicable Quote for the purposes of these Conditions. For the
avoidance of doubt, the Supplier will have no obligation in relation to any
amended Quote (or any requested amendments to the Services) unless and until an
amended Quote is signed by the Customer and returned to it in accordance with
the provisions of this clause.
7.2
The Contract Price may be paid in instalments if provision for payment
by instalments is made in the Quote. Some or all of the Contract Price may be
payable in advance, if so set out in the Quote. Otherwise, the Supplier will
invoice the Customer for the Contract Price on or at any time after completion
of the Services. If the duration of the Services is greater than one month, the
Supplier reserves the right to submit interim invoices every 30 days.
(a)
the cost of hotel, subsistence, travelling and any other ancillary
expenses reasonably incurred by the individuals whom the Supplier engages in
connection with the Services, the cost of any materials and the cost of
services (other than the Services) reasonably and properly provided by third
parties and required by the Supplier for the supply of the Services;
(b)
VAT, and
such expenses, materials
and third party services shall be invoiced by the Supplier, and VAT (if
applicable) will be added by the Supplier to all its invoices to the Customer,
and the Customer will duly pay the same in accordance with the provisions of
this clause.
7.4
The Customer shall pay in pounds sterling each invoice submitted to it
by the Supplier, in full and in cleared funds, and without any deduction or set
off within 30 days of receipt and in accordance with the provisions of this
clause.
7.5
Without prejudice to any other right or remedy that it may have, if the
Customer fails to pay the Supplier on the due date, the Supplier may:
(a)
charge interest on such sum from the due date for payment at the rate of
interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
(b)
suspend some or all of the Services until payment has been made in full.
7.6
Time for payment shall be of the essence of the Contract.
7.7
The Supplier may, without prejudice to any other rights it may have, set
off any liability of the Customer to the Supplier against any liability of the
Supplier to the Customer.
8.1
As between the Customer and the Supplier, all Intellectual Property
Rights and all other rights in the Deliverables (except to the extent that they
contain any pre-existing Intellectual Property Right of the Customer, and
subject to any written agreement to the contrary) and the Pre-existing
Materials shall be owned by the Supplier. Subject to clause 8.2, the Supplier
hereby licences all such rights in the Deliverables to the Customer free of
charge and on a non-exclusive, worldwide basis to such extent as is necessary
to enable the Customer to make reasonable use of the Deliverables and the
Services.
8.2
Where the provision of Services requires the use by the Supplier of any
Intellectual Property Right of the Customer, the Supplier will only use such
Intellectual Property Rights strictly to the extent as is necessary for the
performance of the Services, and the Customer hereby grants the Supplier such
licence to do so.
9.1
Any party (the ÒReceiving PartyÓ) shall keep in strict confidence all
technical or commercial know-how, specifications, inventions, processes or
initiatives which are of a confidential nature and have been disclosed to it by
the other party (the ÒDisclosing PartyÓ), its employees, agents or
sub-contractors and any other confidential information concerning the
Disclosing PartyÕs business or its products which the Receiving Party may
obtain. The Receiving Party shall restrict disclosure of such confidential
material to such of its employees, agents or sub-contractors as need to know
the same for the purpose of discharging the Receiving PartyÕs obligations under
the Contract, and shall ensure that such employees, agents or sub-contractors
are made aware of the confidential nature of such confidential material.
10.1
This clause 10 sets out the entire financial liability of the
Supplier (including any liability for the acts or omissions of its employees,
agents and sub-contractors) to the Customer in respect of:
(a)
any breach of the Contract;
(b)
any use made by the Customer of the Services, the Deliverables or any
part of them; and
(c)
any representation, statement or tortious act or omission (including
negligence) arising under or in connection with the Contract.
(a)
for death or personal injury resulting from negligence; or
(b)
for any damage or liability incurred as a result of fraud or fraudulent
misrepresentation by the Supplier.
10.4
Subject to clauses 10.2 and 10.3:
(a)
the Supplier shall not be liable, whether in tort (including for
negligence or breach of statutory duty), contract, misrepresentation or
otherwise for loss of profits, business, anticipated savings, goods, contract,
use or loss or corruption of data, software or information, or for depletion of
goodwill or any special, indirect or consequential or pure economic loss,
costs, damages, charges or expenses.
(b)
the Supplier's total liability in contract, tort (including negligence
or breach of statutory duty), misrepresentation, restitution or otherwise
arising in connection with the performance or contemplated performance of the
Services shall be limited to the price paid by the Customer for the Services.
(c)
The Supplier will not be liable for, and the Customer will indemnify the
Supplier against, any costs, losses, damages or charges arising from any
claims, proceedings or actions arising from the SupplierÕs use of the In-put
Material in the provision of the Services.
(d)
The Supplier shall not be liable for any errors not brought to its
attention by the Customer in respect of proofs submitted to the Customer, and
the Supplier does not accept responsibility for any imperfect work caused by
defects in or unsuitability of any In-put Material provided by the Customer.
(a)
the Breaching Party commits
a material breach of any of the terms of the Contract and (if such a breach is
remediable) fails to remedy that breach within 30 days of being notified in
writing of the breach; or
(b)
an order is made or a resolution is passed for the winding up of the Breaching
Party, or circumstances arise which entitle a court of competent jurisdiction
to make a winding-up order against the Breaching Party; or
(c)
an order is made for the appointment of an administrator to manage the
affairs, business and property of the Breaching Party, or documents are filed
with a court of competent jurisdiction for the appointment of an administrator
of the Breaching Party, or notice of intention to appoint an administrator is
given by the Breaching Party or its directors or by a qualifying floating
charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act
1986); or
(d)
a receiver is appointed of any of the Breaching Party's assets or
undertaking, or circumstances arise which entitle a court of competent
jurisdiction or a creditor to appoint a receiver or manager of the Breaching
Party; or
(e)
the Breaching Party makes any 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
(f)
the Breaching Party ceases, or threatens to cease, to trade.
(a)
the Customer shall immediately pay to the Supplier all of the Supplier's
outstanding unpaid invoices plus any interest and, in respect of Services
supplied but for which no invoice has been submitted, the Supplier may submit
an invoice, which shall be payable immediately on receipt; and
(b)
the accrued rights of the parties as at termination and the continuation
of any provision expressly stated to survive or implicitly surviving
termination, shall not be affected.
The Supplier shall have no liability to the Customer under the Contract
if it is prevented from or delayed in performing the Services by acts, events,
omissions or accidents beyond its reasonable control, including strikes,
lock-outs or other industrial disputes (whether involving the workforce of the
Supplier or any other party), failure of a utility service or transport
network, act of God, war, riot, civil commotion, malicious damage, accident,
breakdown of plant or machinery, fire, flood, storm or default of suppliers or
sub-contractors.
13.
General
13.1
A waiver of any right under the Contract Documents is only effective if
it is in writing and it applies only to the party to whom the waiver is
addressed and the circumstances for which it is given.
13.2
Personal data (as the same is defined in the Data Protection Act 1998)
relating to the Customer or the CustomerÕs employees acquired by the Supplier
will be processed by or on behalf of the Supplier in connection with the
Services and may be used by the Supplier for marketing other similar services
to the Customer.
13.4
Each of the parties acknowledges and agrees that, in entering into the
Contract it does not rely on any undertaking, promise, assurance, statement,
representation, warranty or understanding (whether in writing or not) of any
person (whether party to the Contract or not) relating to its subject matter
other than as expressly set out in the Contract Documents.
13.5
The Supplier may at any time assign, transfer, charge, sub-contract or
deal in any other manner with all or any of its rights or obligations under the
Contract.
13.6
Nothing in the Contract Documents is intended to, or shall operate to,
create a partnership between the parties, or to authorise either party to act
as agent for the other.
13.7
The Contract is made for the benefit of the parties to it and (where
applicable) their successors and permitted assigns and is not intended to
benefit, or be enforceable by, anyone else.
13.8
Notice given under the Contract shall be in writing, sent for the
attention of the person, and to the address or fax number, given in the Quote
(or such other address, fax number or person as the relevant party may notify
to the other party) and shall be delivered personally, sent by fax or sent by
pre-paid, first-class post or recorded delivery. A notice is deemed to have
been received, if delivered personally, at the time of delivery, in the case of
fax, at the time of transmission, in the case of pre-paid first class post or
recorded delivery, 48 hours from the date of posting and, if deemed receipt
under this clause is not within business hours (meaning 9.00 am to 5.30 pm
Monday to Friday on a day that is a business day), at 9.00 am on the first
business day following delivery. To prove service, it is sufficient to prove that
the notice was transmitted by fax, to the fax number of the party or, in the
case of post, that the envelope containing the notice was properly addressed
and posted.
13.9
Subject to clause 6, no variation of any of the Contract Documents shall
be valid unless it is in writing and signed by each of the parties.
13.10
The Contract is governed by English law and the parties submit to the
non-exclusive jurisdiction of the English Courts.