Terms and Conditions
YOUR ATTENTION IS PARTICULARLY DRAWN TO CLAUSE 10, WHICH SETS OUT OUR LIABLITY TO YOU.
All of the services provided by Media and Digital Limited (“the Services”) provided by (“us”/“we”/“our”) to you, the Customer, (“you”/”your”) are subject to the following standard terms and conditions (“Conditions”).
These Conditions and the Schedules attached to them supersede all previous representations, understandings or agreements unless otherwise confirmed in writing by us.
1.1 The definitions and rules of interpretation in this clause apply in these Conditions..
Acceptance Tests: your confirmation that the Deliverables provided to you are agreed.
Commencement Date: the date in which you accept these terms and conditions.
Deliverables: all Documents, products and materials developed by us or our agents, subcontractors, consultants and employees in relation to a Quotation or the Services in any form, including computer programs, data, reports and specifications (including drafts) the deliverables specified in the Quotation.
Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, 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.
Materials: all Documents, information and materials provided by you relating to the Services, including computer programs, data, reports and specifications or the in-put materials specified in the Quotation.
Our Equipment: any equipment, including tools, systems, cabling or facilities, provided by us or our subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between us under which title passes to you.
Pre-existing Materials: all Documents, information and materials provided by us relating to the Services which existed prior to the commencement of these Conditions, including computer programs, data, reports and specifications or the pre-existing materials specified in the Quotation.
Project: a project as described in the Quotation. Project Milestones: a date by which a part of the Quotation is estimated to
be completed, as set out in the Quotation.
Quotation: the detailed plan describing a Quotation and setting out the estimated timetable (including Project Milestones) and responsibilities for the provision of the Services agreed in accordance with clause 3.
Schedules: the schedules to these Conditions which are fully incorporated into these Conditions.
Services: the services to be provided by us as set out in a Quotation, together with any other services which we provide or agree to provide to you.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
Your Equipment: any equipment, systems or facilities provided by you and used directly or indirectly in the supply of the Services.
. 1.2 Clause, schedule and paragraph headings shall not affect the interpretation of these Conditions.
. 1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.
. 1.4 The schedules form part of these Conditions and shall have effect as if set out in full in the body of these Conditions. Any reference to these Conditions includes the schedules.
. 1.5 Words in the singular shall include the plural and vice versa. 2
. 1.6 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re- enactment and includes any subordinate legislation for the time being in force made under it.
. 1.7 A reference to writing or written includes faxes but not e-mail.
. 1.8 Where the words include(s), including or in particular are used in these Conditions, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
. 1.9 Any obligation in these Conditions on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
. 1.10 Reference to clauses and schedules are to the clauses and schedules of these Conditions.
2. COMMENCEMENT AND DURATION
. 2.1 We shall provide the Services to you from the date specified in the Quotation, a copy of which shall be attached to these Conditions where practicable.
. 2.2 Once you have accepted the Quotation we shall confirm that we are prepared to undertake your instructions, from which point the contract is formed between us.
. 2.3 The Services supplied under these Conditions shall continue to be supplied until the Project is completed in accordance with the Quotation unless we agree otherwise.
3.1 The Project shall be agreed in the following manner:
(a) where appropriate, you shall provide us with a request for a Quotation, setting out the requirements and specifications of the services which you are requesting from us, including a description of what work is to be done, dates by which each stage of the work is requested to be started and finished, acceptance tests criteria as appropriate, Deliverables,
Materials and such other information as we may request to allow us to prepare a draft Quotation;
. (b) we shall, as soon as reasonably practicable, provide you with a draft Quotation; and
. (c) there shall be no changes made to the Quotation without our express consent in writing.
3.2 Once the Quotation has been agreed, no amendment shall be made to it except in accordance with clause 6 and clause 14.
4. OUR OBLIGATIONS
. 4.1 We shall use reasonable endeavours to manage and complete the Services, and to deliver the Deliverables to you, in accordance with the Quotation in all material respects.
. 4.2 We shall use reasonable endeavours to meet any performance dates specified in the Quotation, as agreed in writing, but any such dates shall be estimates only and time for performance by us shall not be of the essence of these Conditions.
. 4.3 Where applicable we shall obtain your approval to the Services as follows:
. (a) we will send you an e-mail with the proposed Deliverables for your Acceptance;
. (b) you will let us know within the timescales specified whether the Deliverables are approved;
. (c) if the Deliverables are not accepted by you we will amend and re-submit them to you for Acceptance. If any further costs are likely to be incurred as a result of this, we will obtain your prior approval before we incur additional charges.
. 4.4 Acceptance of the Deliverables shall be deemed to have taken place when you use any part of the Deliverables for any revenue-earning purposes or to provide any Services to third parties.
. 4.5 Charges will apply for the approval process carried out under this clause in accordance with our Quotation.
. 4.6 Some of the Services we provide to you are hosted on platforms or websites owned by third parties. We do not provide any guarantees that the Services will be available at all times, and may be subject to downtime. We shall not be liable to you for any damages you may suffer (whether direct or indirect) as a result of any such downtime or interruption to the Services.
. 4.7 if we are providing Services to you which are hosted on third party servers, our Services to you are merely to provide content and we have no responsibility or liability for the hosting of the content.
. 4.8 In the event that the third party hosting services were interrupted, we would use our reasonable endeavours to do what we can to restore the hosting services and may migrate the content hosted on the third party server to another third party hosting provider. In the event that this was deemed necessary, charges may apply and you will be responsible for paying these charges. We will try and agree any such charges with you in advance, where possible.
. 4.9 We do not guarantee that any of the Services will be virus or error free or uninterrupted.
. 4.10 We are not responsible for any reprint of material as a result of any change in the name of any app we create or any third party supplier creates which is used as part of the Services.
5. YOUR OBLIGATIONS
5.1 You shall:
. (a) co-operate with us in all matters relating to the Services and appoint an authorised person to act as a point of contact in relation to the Services, who shall have the authority contractually to bind you on matters relating to the Services;
. (b) be responsible for the transportation of all third parties in respect in respect of the Services, to include providing transport for students and staff;
. (c) if necessary, provide access to your premises and data, as required by us;
. (d) provide, in a timely manner, such Materials and other information as we may reasonably require, and ensure that it is accurate in all material respects;
. (e) be responsible (at your own cost) for preparing and maintaining the relevant premises for the supply of the Services;
. (f) ensure that all Your Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services;
. (g) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of our equipment, the use of Materials and the use of Your Equipment in relation to our equipment; and
. (h) keep and maintain our equipment in accordance with our instructions as notified in writing from time to time and not to dispose of or use the equipment other than in accordance with our written instructions or authorisation;
. (i) Be responsible for the wellbeing of all third parties (including minors) used to assist us with the provision of the Services and will ensure that a responsible adult is present on your behalf each time we are left with minors;
. (j) Be responsible for obtaining consent of all individuals who appear in film, print and audio for the purposes of marketing and publishing including within the public domain.
. 5.2 If the performance of our obligations under these Conditions is prevented or delayed by any act or omission by you, your agents, subcontractors, consultants or employees, we shall not be liable for any costs, charges or losses sustained or incurred by you that arise directly or indirectly from such prevention or delay.
. 5.3 If the performance of our obligations under these Conditions is prevented or delayed by any act or omission by you for five days or more from the date of a request by us, we shall be entitled to charge you an administration fee of £250.
. 5.4 You shall be liable to pay to us, on demand, all reasonable costs, charges or losses sustained or incurred by us (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from your fraud, negligence, failure to perform or delay in the performance of any of your obligations under these Conditions, subject to us confirming such costs, charges and losses to you in writing.
. 5.5 You shall not, without our prior written consent, at any time from the date of these Conditions to the expiry of 12 months after the termination of these Conditions, solicit or entice away from us or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of ours.
. 5.6 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 and these will be payable by you on demand but will at all times be set out in our Quotation.
6. CHANGE CONTROL
. 6.1 If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.
. 6.2 If either party requests a change to the scope or execution of the Services, we
shall, within a reasonable time, provide a written estimate to you of:
. (a) the likely time required to implement the change;
. (b) any necessary variations to our charges arising from the change;
. (c) the likely effect of the change on the Quotation; and
. (d) any other impact of the change on these Conditions.
. 6.3 If you wish us to proceed with the change, we have no obligation to do so unless and until we have agreed the necessary variations to our charges, the Services, the relevant Quotation and any other relevant terms of these Conditions to take account of the change and these Conditions has been varied in accordance with clause 14.
. 6.4 Notwithstanding clause 6.3, we may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. We may, from time to time and subject to your prior written consent, which shall not be unreasonably withheld or delayed change the Services, provided that such changes do not materially affect the nature or quality of the Services and, where practicable, we will give you at least three months’ notice of any change.
6.5 We may charge for the time we spend assessing a request for change from you on a time and materials basis in accordance with clause 7.
7. CHARGES AND PAYMENT
. 7.1 In consideration of the provision of the Services by us, you shall pay our charges as set out in the Quotation, which shall specify whether they shall be on a time and materials basis, a fixed price basis or a combination of both. Clause 7.2 shall apply if we provide Services on a time and materials basis and clause 7.3 shall apply if we provide Services for a fixed price. The remainder of this clause 7 shall apply in either case.
. 7.2 In the event that the Services are still not concluded within six months from the Commencement Date, all the Charges shall immediately become due and payable.
. 7.3 Where Services are provided on a time and materials basis:
. (a) the charges payable for the Services shall be calculated in accordance with our quotation set out on the Quotation, as amended from time to time by us giving not less than three months’ written notice to you;
. (b) our standard fee rates are calculated on an hourly basis for each individual person. Daily fee rates are calculated on the basis of an eight-hour day, worked between 9.00 am and 5.30 pm on weekdays (excluding public holidays);
. (c) we shall be entitled to charge an overtime rate of 25% of the normal daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Project or Services outside the hours referred to in clause 7.3(b);
. (d) all charges quoted to you shall be exclusive of VAT, which we shall add to our invoices at the appropriate rate;
. (e) we shall invoice you in accordance with the Quotation and our invoice terms are 30 days.
. 7.4 Where Services are provided for a fixed price, the total price for the Services shall be the amount set out in the Quotation as amended from time to time in accordance with clause 7.6. You shall pay the total price to us (without deduction or set-off) in instalments, as set out in the Quotation. At the end of the period specified in the Quotation, we shall invoice you for the charges that are then payable, together with expenses, the costs of materials and VAT, where appropriate, calculated as provided in clause 7.5.
. 7.5 Any fixed price contained in the Quotation excludes:
. (a) expenses (cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred), the cost of any materials and the cost of services reasonably and properly provided by third parties, and required by us for the supply of the Services. Such expenses, materials and third party services shall be invoiced by us;
. (b) any costs incurred by the reproduction of and/or the copying of resources in an editable format for your internal use only, (to be provided to you at our discretion only); and
. (c) VAT, which we shall add to its invoices at the appropriate rate.
. 7.6 You agree that we may review and increase the charges set out in the Quotation, provided that such charges cannot be increased more than once in any 12 month period. We shall give you written notice of any such increase three months before the proposed date of that increase. If such increase is not acceptable to you, it may, within one week of such notice being received or deemed to have been received in accordance with clause 2, terminate the agreement by giving one month’s written notice to us.
. 7.7 You shall pay each invoice submitted to you by us, in full and in cleared funds.
. 7.8 Without prejudice to any other right or remedy that you may have, if you fail to pay us on the due date, we may:
. (a) charge interest on such sum from the due date for payment at the annual rate of 8% above the base rate from time to time of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and you shall pay the interest immediately on demand; and
. (b) suspend all Services until payment has been made in full.
. 7.9 All sums payable to us under these Conditions shall become due immediately on its termination, despite any other provision. This clause 7.8 is without prejudice to any right to claim for interest under the law, or any such right under these Conditions.
. 7.10 For the provision of some of our Services money on account will be required before we are able to proceed with your instructions. We shall not be liable for any delay caused by your delay or failure to pay the requested sums on account.
. 7.11 We have the right to retain or remove the Deliverables (such as taking down your website) if sums payable to us remain due for five days or over.
8. INTELLECTUAL PROPERTY RIGHTS
. 8.1 As between you and us, all Intellectual Property Rights and all other rights and all other Pre-existing Materials shall be owned by us but, upon full payment of any outstanding sums, shall be licensed to you for use within your business internally only, free of charge, on a non-exclusive, worldwide basis. For the avoidance of doubt, this license does not permit the use of the Intellectual Property Rights for the benefit of any third parties.
. 8.2 You acknowledge that, where we do not own any of the Pre-existing Materials, your use of rights in Pre-existing Materials is conditional on us obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle us to license such rights to you.
. 8.3 We own the Intellectual Property Rights in the Services and they shall at all times be owned by us.
. 8.4 By supplying materials to us, you declare that you hold the appropriate Intellectual Property Rights in these, or a licence to use them. The ownership of such materials will remain with you, or rightful copyright or trademark owner. You will, however, provide us with a perpetual non-exclusive licence to use and modify the Intellectual Property Rights in the Materials for the purpose of providing the Services.
. 8.5 You undertake to defend us from and against any claim or action that the possession, use, development, modification or maintenance of the Materials (or any part thereof) infringes the Intellectual Property Rights of a third party (“Claim”) and shall fully indemnify and hold us harmless from and against any losses, damages, costs (including all legal fees) and expenses incurred by or awarded against us as a result of, or in connection with, any such Claim.
9. CONFIDENTIALITY AND OUR PROPERTY
. 9.1 You 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 you by us, our employees, agents, consultants or subcontractors and any other confidential information concerning our business or its products which you may obtain.
. 9.2 You may only disclose such information:
. (a) to your employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out your obligations under these Conditions; and
. (b) as may be required by law, court order or any governmental or regulatory authority.
. 9.3 You shall ensure that your employees, officers, representatives, advisers, agents or subcontractors to whom you disclose such information comply with this clause 9.
. 9.4 You shall not use any such information for any purpose other than to perform your obligations under these Conditions.
. 9.5 All materials, equipment and tools, drawings, specifications and data supplied by us to you (including Pre-existing Materials and Our Equipment (shall, at all times, be and remain our exclusive property, but shall be held by you in safe custody at your own risk and maintained and kept in good condition by you until returned to us, and shall not be disposed of or used other than in accordance with our written instructions or authorisation.
10. LIMITATION OF LIABILITY- YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
10.1 Nothing in these Conditions limits or excludes our liability for:
. (a) death or personal injury caused by our negligence;
. (b) fraud or fraudulent misrepresentation; or
. (c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
. 10.2 Subject to clause 10.1 we shall not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these Conditions for:
. (a) loss of profits;
. (b) loss of sales or business;
. (c) loss of agreements or contracts;
. (d) loss of anticipated savings;
. (e) loss of or damage to goodwill;
. (f) loss of use or corruption of software, data or information;
. (g) any indirect or consequential loss.
. 10.3 Subject to clause 10.1 and clause 10.2, our total liability to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these Conditions shall be limited to the amount of the charges set out in the Quotation which you have paid in the last six months in respect of the Services.
. 10.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these Conditions.
11. DATA PROTECTION AND THIRD PARTY CONSENT
. 11.1 You acknowledge and agree that details of your name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of us in connection with the Services.
. 11.2 You undertake to us that all third parties involved in any of the Services we undertake on your behalf (“Third Parties”) have provided their express written consent to you to be involved in the Service whether this be by way of having their photos, images or video footage captured or otherwise. You will provide us with a list of parties that are not to be used in the provision of any of our Services in advance of the Services commencing.
. 11.3 You will indemnify us fully for all losses and damages we may suffer as a result of your breach of clause 11.2, or losses and damages we may suffer as a result of Third Parties asking to be removed from any of the Deliverables.
12.1 Without prejudice to any other rights or remedies which we both may have, either of us may terminate our contractual relationship without liability to the other immediately on giving notice to the other if:
. (a) the other party fails to pay any amount due under these Conditions on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment; or
. (b) the other party commits a breach of any of the terms of these Conditions and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
. (c) the other party repeatedly breaches any of the terms of these Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Conditions; or
. (d) the other party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
. (e) the other party commences negotiations with all, or any class of, its creditors with a view to rescheduling any of its debts, or makes a Quotation for, or enters into any compromise or arrangement with, its creditors; or
. (f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party; or
. (g) an application is made to court, or an order is made, for the appointment of an administrator, a notice of intention to appoint an administrator is given, or an administrator is appointed over the other party; or
. (h) a floating charge holder over the assets of that other party has become entitled to appoint, or has appointed, an administrative receiver; or
. (i) a person becomes entitled to appoint a receiver over the assets of the other party, or a receiver is appointed over the assets of the other party; or
. (j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
. (k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.1(d) to clause 12.1(j) (inclusive); or
. (l) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
. (m) there is a change of control of the other party (as defined in Section 574 of the Capital Allowances Act 2001).
12.2 On termination of our contractual relationship for any reason:
. (a) you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services or Deliverables supplied but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt;
. (b) you shall, within a reasonable time, return all of Our Equipment, Pre- existing Materials and Deliverables. If you fail to do so, then we may enter your premises and take possession of them. Until they have been returned or repossessed, you shall be solely responsible for their safe keeping;
. (c) the accrued rights, remedies, obligations and liabilities of us both as at termination shall not be affected, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination; and
. (d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
13. FORCE MAJEURE
13.1 A party, provided that it has complied with the provisions of clause 13.3, shall not be in breach of these Conditions, nor liable for any failure or delay in performance of any obligations under these Conditions arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (Force Majeure Event), including but not limited to any of the following:
(a) acts of God, including but not limited to fire, flood, earthquake, windstorm or other natural disaster;
. (b) war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions;
. (c) terrorist attack, civil war, civil commotion or riots;
. (d) nuclear, chemical or biological contamination or sonic boom;
. (e) compliance with any law;
. (f) fire, explosion or accidental damage;
. (g) loss at sea;
. (h) extreme adverse weather conditions;
. (i) collapse of building structures, failure of plant machinery, machinery, computers or vehicles;
. (j) any labour dispute, including but not limited to strikes, industrial action or lockouts;
. (k) non-performance by suppliers or subcontractors; and
. (l) interruption or failure of utility service, including but not limited to electric power, gas or water.
. 13.2 The corresponding obligations of the other party will be suspended to the same extent.
. 13.3 Any party that is subject to a Force Majeure Event shall not be in breach of these Conditions provided that:
. (a) it promptly notifies the other party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance;
. (b) it could not have avoided the effect of the Force Majeure Event by taking precautions which, having regard to all the matters known to it before the Force Majeure Event, it ought reasonably to have taken, but did not; and
. (c) it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under these Conditions in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
. 13.4 If the Force Majeure Event prevails for a continuous period of more than six months, either party may terminate these Conditions by giving 7 days’ written notice to all the other party. On the expiry of this notice period, these Conditions will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of these Conditions occurring prior to such termination.
14. VARIATION No variation of these Conditions or of any of the documents referred to in it shall be valid unless it is in writing. We may accept variation by e-mail with prior consent.
. 15.1 A waiver of any right or remedy under these Conditions is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under these Conditions or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
. 15.2 No single or partial exercise of any right or remedy provided under these Conditions or by law shall preclude or restrict the further exercise of any such right or remedy.
16. CUMULATIVE REMEDIES Unless specifically provided otherwise, rights arising under these Conditions are cumulative and do not exclude rights provided by law.
. 17.1 If any court or competent authority finds that any provision of these Conditions (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of these Conditions shall not be affected.
. 17.2 If any invalid, unenforceable or illegal provision of these Conditions would be valid, enforceable and legal if some part of it were deleted, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.
18. ENTIRE AGREEMENT
. 18.1 These Conditions, and any documents referred to in it, constitutes the entire agreement between us and supersedes and extinguishes all previous drafts, arrangements, understandings or agreements between us, whether written or oral, relating to the subject matter of these Conditions.
. 18.2 Each party acknowledges that, in entering into these Conditions and the documents referred to in it, it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in these Conditions or those documents. Each party agrees that its only liability in respect of those representations and warranties that are set out in these Conditions or those documents (whether made innocently or negligently) shall be for breach of contract.
. 18.3 Nothing in this clause shall limit or exclude any liability for fraud.
. 19.1 You shall not, without our prior written consent, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of your rights or obligations under these Conditions.
. 19.2 We may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of our rights or obligations under these Conditions.
20. NO PARTNERSHIP OR AGENCY Nothing in these Conditions is intended to, or shall operate to, create a partnership between us, or to authorise either you or us to act as agent for the other, and neither you or us shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
21. RIGHTS OF THIRD PARTIES A person who is not a party to these Conditions shall not have any rights under or in connection with it. 17
. 22.1 A notice given to a party under these Conditions:
. (a) shall be in writing in English (or accompanied by a properly prepared translation into English);
. (b) shall be signed by or on behalf of the party giving it;
. (c) shall be sent for the attention of the person, at the address or fax number specified in this clause (or to such other address, fax number or person as that party may notify to the other, in accordance with the provisions of this clause); and
. (d) shall be:
. (e) delivered personally; or
. (f) sent by commercial courier; or
. (g) sent by fax; or
. (h) sent by pre-paid first-class post or recorded delivery; or
. (i) sent by airmail requiring signature on delivery.
. 22.2 The addresses for service of a notice are as set out in the Project Plan.
. 22.3 If a notice has been properly sent or delivered in accordance with this clause, it will be deemed to have been received as follows:
. (a) if delivered personally, at the time of delivery; or
. (b) if delivered by commercial courier, at the time of signature of the courier’s receipt; or
. (c) if sent by fax, at the time of transmission; or
. (d) if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second day after posting; or
. (e) if sent by airmail, five days from the date of posting.
. 22.4 For the purposes of this clause:
. (a) all times are to be read as local time in the place of deemed receipt; and
. (b) 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 not a public holiday in the place of receipt), the notice or other communication is deemed to have been received when business next starts in the place of receipt.
. 22.5 To prove delivery, it is sufficient to prove that:
. (a) if sent by fax, the notice was transmitted by fax to the fax number of the party; or
. (b) if sent by pre-paid first class post, the envelope containing the notice was properly addressed and posted.
. 22.6 The provisions of this clause 22 shall not apply to the service of any process in any legal action or proceedings.
. 22.7 A notice required to be given under these Conditions shall not be validly served if sent by e-mail.
23. GOVERNING LAW AND JURISDICTION
. 23.1 These Conditions and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
. 23.2 We both agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Conditions or its subject matter or formation (including non- contractual disputes or claims).
THESE CONDITIONS WERE LAST UPDATED ON [ ]
1 WEBSITE DESIGN, DEVELOPMENT OR HOSTING
In addition to the standard Terms and Conditions set out above, the following terms shall apply to all Website Design and Development.
The following definitions shall apply to this Schedule, in addition to the definitions contained in clause 1 at the conditions:
Acceptance: the acceptance or deemed acceptance of the Site by you, pursuant to clause 2 of this Schedule.
Site: the website to be hosted by us, pursuant to these Conditions. Site Software: the software for the Site commissioned by you. Visitor: a visitor to the Site.
1. SCOPE OF THE PROJECT
. (a) design, develop and deliver the Site in accordance with the Quotation; and
. (b) provide the Services.
2. DEVELOPMENT AND ACCEPTANCE OF SITE
. 2.1 All sites created and provided by us are designed to work in the current version, and the version released prior to this, of the most widely used browsers. We do not guarantee the site working in all browsers.
. 2.2 Once we have completed the design and development of the Site we run a number of internal tests but then in accordance with the Quotation, we shall run the Acceptance Tests. The procedures set out in this clause shall be repeated and any further development works agreed between us from time to time.
2.2 The Acceptance Tests shall test compliance of the Site. The form and detail of such tests is set out in the Quotation.
. 2.3 Acceptance of the Site shall occur when the Site has passed the Acceptance Tests. We shall notify you when the tests have been passed and provide the results of the Acceptance Tests to you in writing.
. 2.4 If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of yours, or by one of your sub-contractors or agents for whom we have no responsibility (Non-Supplier Defect), the Site shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Supplier Defect. We shall provide assistance reasonably requested by you in remedying any Non-Supplier Defect by supplying additional services or products. You shall pay us in full for all such additional services and products at our then current fees and prices.
. 2.5 Acceptance of the Site shall be deemed to have taken place upon the occurrence of any of the following events:
. (a) you use any part of the Site for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
. (b) you unreasonably delay the start of the relevant Acceptance Tests or any retests for a period of seven working days from the date on which we are ready to commence running such Acceptance Tests or retests.
4. SITE CONTENT
We shall update the Site with Materials provided from time to time by you. You shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights)
. 4.1 We will only have access to your server where you have granted us access as agreed.
. 4.2 We shall include only Materials on the Site. You acknowledge that we have no control over any content placed on the Site by Visitors and do not purport to monitor the content of the Site. We reserve the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content. We shall notify you promptly if we become aware of any allegation that any content on the Site may be Inappropriate Content.
4.3 You shall indemnify us against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content.
SCHEDULE 2 PR SERVICES
In addition to the standard Terms and Conditions set out above, the following terms shall apply to all PR services.
1 Your Obligations
1.1 In addition to those set out in the main agreement, you undertake promptly to provide us with all information, assistance and materials that we request from time to time to facilitate the proper and timely performance of the Services. In particular (but without limitation) you agree to:
. 1.1.1 notify us of any enquiries related to any campaign(s) from any of the media;
. 1.1.2 advise us well in advance of any major events in your business, such as the launch of a new product or service and/or the opening of any new premises;
. 1.1.3 to permit us to attend meetings, when reasonably necessary, with any advertising and/or marketing services agencies and other advisers engaged by you.
. 1.1.4 not to discuss any Projects to any reasonably significant extent with any representative of the media other than through or with our knowledge.
2. Operational Expenses and Bought In Materials and Services
. 2.1 These are:
. (a) telecommunications and faxes;
. (b) day-to-day postage, stationery and photocopying;
. (c) media distribution services;
. (d) this is invoiced with the fee or may be included in the fee if so specified.
. 2.2 In addition, specific further operational expenses, bought in materials and service incurred on your behalf and relating to the programme will be invoiced, fully itemised, monthly in arrears. These costs will be set out in the Quotation but may include any of the following:
. (a) accommodation and subsistence;
. (b) advertising artwork and mechanical items;
. (c) design, artwork and print;
. (d) direct mail;
. (e) entertainment;
. (f) evaluation;
. (g) exhibition and display material;
. (h) film production;
. (i) market research;
. (j) media monitoring (radio, television, press and online);
. (k) messenger services;
. (l) newspapers and magazine subscriptions;
. (m) photocopying and stationery;
. (n) photography and prints;
. (o) postage, telephone and facsimile transmissions;
. (p) press material production and distribution;
. (q) special events, meetings and conferences;
. (r) travel.
2.3 It is normal practice for all materials and services purchased from third party individuals, companies or organisations to be charged at cost plus a handling charge of 15% which we are entitled to charge.
3. Approvals and Authority
. 3.1 After obtaining general approval of campaign or Quotations we will submit to you for specific approval, as required:
. (a) draft press releases, articles, photographs and captions; and/or
. (b) copy, layout, artwork and scripts.
. 3.2 Written or oral approval by you of drafts or proofs will be taken by us as authorisation to proceed to publication (to include any social media sites and e-shots), and such approval will be taken as authorisation to enter into contracts with suppliers.
. 3.3 We will take all reasonable steps to comply with any requests from you to amend, halt, reject or cancel work in preparation, insofar as this is possible within the terms of its contractual obligations to suppliers, however you will still be required to pay for the Services.
. 3.4 Amendments or cancellations will be implemented by us only on the understanding that you will be responsible for any costs or expenses incurred prior to, or as a result of, the cancellation or amendment and which cannot be recovered by you.
3.5 Once you have approved any of the Deliverables, we accept no liability for any loss or damage caused to you as a result of the publication of any of the proofs, or amendments made to these, by the press.
SCHEDULE 3 PRINT, PHOTOGRAPHY AND CREATIVE DESIGN SERVICES
In addition to the standard Terms and Conditions set out above, the following terms shall apply to all Print and Creative Design Services.
. 1.1 The Intellectual property Rights in the Services is retained by us on all design work including words, pictures, ideas, visuals and illustrations (unless specifically released in writing) and all costs have been settled.
. 1.2 If a choice of design is presented, only one solution is deemed to be given by us as fulfilling the contract. All other designs remain our property, unless agreed in writing that this arrangement has been changed.
2. DESIGNS CREDITS You agree to allow us to place a small credit on printed material, exhibition displays and/or advertisements. This will usually be in the form of a small logo or line of text placed towards the bottom of the page.
3. COMPANY IMPRINT No work will carry our imprint unless specifically required by law.
4. VARIATIONS IN QUALITY Reasonable endeavours will be exercised by us to deliver the correct quantity ordered, but estimates are conditional upon margins of 5% for work in one colour only and 10% for other work being allowed for overs or shortage (4% and 8% respectively for quantities exceeding 50,000) the same to be charged or deducted.
5. STANDING MATERIAL Metal, film, glass and other materials owned by us or the Third Party Printer and used by him in the production of type, plates, moulds, stereotypes, electrotypes, filmsetting, negatives and the like shall remain ours or the Printer’s exclusive property.
6. MATERIALS SUPPLIED BY THE CUSTOMER
. (a) We may reject any paper, plates or other materials supplied or specified by you which appear to us to be unsuitable. Additional cost incurred if materials are found to be unsuitable during production may be charged to you.
. (b) Where materials are supplied by you, we will take every care to secure the best results, but responsibility will not be accepted for imperfect work caused by defects in or unsuitability of materials so supplied or specified;
. (c) Quantities of materials supplied shall be adequate to cover normal spoilage.
7. ILLEGAL MATTER
. (a) We will not be required to print any matter which in our opinion is or may be of an illegal or libellous nature or infringes the Intellectual Property Rights of any Third Party;
. (b) We reserve the right to refuse to print any matter which, in our opinion, may be prejudicial or detrimental to the good of our business.
8. FULL COLOUR PRINTING Every effort will be made to obtain the best possible colour reproduction on your work but because of the nature of the processes involved, we shall not be required to guarantee an exact match in colour or texture between your original colour photograph or transparency and the printed article. If you require colour reproduction of a specific standard wish to check the colour reproduction prior to printing, must order a colour proof, in writing, when placing the order. This will be charged as an additional cost. It is your own responsibilities to ensure that the colour photograph(s) or transparency (cies) submitted are suitable for the Services. We cannot accept liability for unsatisfactory results caused by unsuitable or inferior photographic originals.