2.  BASIS OF CONTRACT

 

2.1 The Proposal constitutes an offer by the Supplier to provide Services to the Customer in accordance with these Conditions.

 

2.2 The Proposal shall only be deemed to be accepted when the Customer confirms his/her acceptance of it, either by email, or by electronically accepting the Proposal online, at which point and on which date the Contract shall come into existence (Commencement Date).

 

2.3 Any samples, descriptive matter or advertising issued by the Supplier, and any descriptions contained in the Supplier’s catalogues, brochures or website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

 

2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

 

2.5 Any Proposal given by the Supplier is only valid for a period of sixty (60) Business Days from its date of issue.

​

3.  SUPPLY OF SERVICES

 

3.1 The Supplier shall supply the Services to the Customer in accordance with the Proposal in all material respects.

 

3.2 The Supplier shall use reasonable endeavours to meet any performance dates specified in the Proposal but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

 

3.3 The Supplier reserves the right to amend the Proposal if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

 

3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

 

3.5 The Supplier shall provide the Services as described in the Proposal, and shall use reasonable endeavours to ensure that the Customer is fully satisfied with the outcome of the Services, including, without limitation:

 

(a) by providing free amendments to the Deliverables to the Customer’s satisfaction, up to a maximum of 8 hours’ additional work after completion of the first submitted version of the Deliverables; and

 

(b) by taking such additional steps as the Supplier, in its discretion, may determine.

 

4.  CUSTOMER’S OBLIGATIONS

 

4.1 The Customer shall:

 

(a) ensure that the terms of the Proposal and any information it provides in the Proposal are complete and accurate;

 

(b) co-operate with the Supplier in all matters relating to the Services;

 

(c) provide the Supplier with such information and materials as the Supplier may reasonably require in the Proposal to supply the Services, and ensure that such information is complete and accurate in all material respects

 

(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

 

(g) comply with all applicable laws; and

 

(i) comply with any additional obligations as set out in the Proposal.

 

4.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to respond to the Supplier, provide the Supplier with materials  or to perform any relevant obligation (Customer Default):

 

(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations; and

 

(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this Clause 4.2; and

 

(c)  the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

 

4.3 Complaints procedure.  Upon receipt of the Deliverables from the Supplier, the Customer shall promptly review the Deliverables.  Upon review, the Customer shall promptly confirm whether the Deliverables are completed to the Customer’s satisfaction.  In the event that the deliverables are not completed to the Customer’s satisfaction, the Customer shall first allow the Supplier an opportunity to resolve any issues the Customer may have.  Should the Customer not be satisfied with the second iteration of the Deliverables, the Customer shall provide all reasonable assistance and feedback to the Supplier and shall allow the Supplier one additional attempt to resolve any remaining issues the Customer may have with the Deliverables prior to rejecting the Deliverables or bringing any claim for defective performance of the Contract or otherwise.

 

5. CHARGES AND PAYMENT

 

5.1 The Charges for the Services shall be as set out in the Proposal.  Any additional services provided which are outside the scope of the Proposal shall be calculated on a time basis:

 

(a)  the Charges shall be calculated in accordance with the Supplier’s daily fee rates, as set out in the Proposal;

 

(b)  the Supplier’s daily fee rates for work are calculated on an hourly rate of £60 per hour, except where a different rate or a fixed sum is specified in the Proposal;

 

(c)  the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred in connection with providing the Services, including the cost of services provided by third parties as required by the Supplier for the performance of the Services, and for the cost of any special materials provided always that the Supplier notifies the Customer in advance of incurring such expenses.

 

5.2 The Supplier shall invoice the Customer on completion of the Services, save and except that the Supplier shall have the right to invoice for Services monthly prior to completion in the event that the Services are provided for a period of time exceeding one calendar month.

 

5.3  The Customer shall pay each invoice submitted by the Supplier:

 

(a)  within 14 days of the date of the invoice; and

 

(b)  in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.

 

5.4 Unless expressed to the contrary, all sums due to the Supplier under or in connection with this agreement are exclusive of VAT.

 

5.5 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under Clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 5.5 will accrue daily on a compound basis at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

 

5.6 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

 

5.7 Deposit. The Supplier may demand an advance deposit for the Services.  If such a deposit is required, the amount of the deposit shall be specified in the Proposal, or otherwise agreed between the parties.  In the event that an advance deposit is required, the Customer shall promptly pay such deposit to the Supplier by the agreed date for payment, and in any event prior to the Supplier commencing the Services.  The Supplier shall have no liability for any late or non-performance of the Services in the event that and to the extent that the Customer fails to pay such deposit by the date specified for payment, and the Customer hereby holds harmless the Supplier in respect of all liability, losses
(including secondary losses) and damages that may arise as a result of or in connection with such an event.

 

5.8 The Charges are non-refundable once the Supplier has begun to perform the Services.

 

5.9 Additional Work.  Where the Customer requests that the Supplier performs additional work outside the scope of the Services described in the Proposal, the Supplier shall be entitled to charge the Customer for such additional work on a pro-rata basis at the same day rate specified in the Proposal (if such a rate is specified), or at the rate set out in Clause 5.1(b) (if the rate is not set out in the Proposal).

 

6.  INTELLECTUAL PROPERTY RIGHTS

 

6.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier until such time as payment is received in full by the Supplier for the Services.

 

6.2 Upon receipt in full by the Supplier of the Customer’s payment for the Services, the Supplier assigns to the Customer all right, interest in and title to the copyright in the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.

 

6.3 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.

 

6.4 Upon assignment The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to use the Deliverables in the promotion of the Supplier’s business.

 

7.  DATA PROTECTION

 

7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 7 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation. In this Clause 7, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.

 

7.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor.

 

7.3 Without prejudice to the generality of Clause 7.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.

 

8.  LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS DRAWN TO THIS CLAUSE.

 

8.1 The parties hereby acknowledge, accept and agree that the limits and exclusions in this clause are fair and reasonable and reflect the availability of commercially-viable insurance cover for the Supplier’s business.

 

8.2 The restrictions on liability in this Clause 8 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

 

8.3 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:

(a)  death or personal injury caused by negligence;

 

(b)  fraud or fraudulent misrepresentation; and

 

(c)  breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

 

8.5 Subject to Clause 8.3, the Supplier’s total liability to the Customer shall not exceed 100% of the Charges paid to and received by the Supplier in the course of providing the Services.

 

8.6 Subject to the above Clause 8.3, the Supplier shall not under any circumstances be liable to the Customer for any:

(a)  loss of profits

(b)  loss of sales or business.

(c)  loss of agreements or contracts.

(d)  loss of anticipated savings.

(e)  loss of use or corruption of software, data or information.

(f)  loss of or damage to goodwill; or

(g)  indirect or consequential loss.

 

8.7 The above Clause 8.7 shall survive termination of the Contract.

 

9. TERMINATION

 

9.1 Either party may terminate the Contract by giving not less than fourteen (14) days’ notice of termination to the other party.

 

9.2 Where the contract is terminated by the Customer, the Customer shall be liable to the Supplier for any work already performed in connection with the Services, notwithstanding the completion or non-completion of the Services, to be billed on an hourly rate basis.

 

9.3 The Supplier may terminate the Contract immediately in the event that the Customer fails to pay any amount due and owing to the Supplier by the date specified for payment, or if the Supplier reasonably believes that the materials provided by the Customer are likely to interfere with the Intellectual Property Rights of a third party.

 

9.4 Following termination of the Contract, howsoever terminated, the Customer shall not use, and shall immediately cease use of, any materials or drafts of any deliverables provided to the Customer, save and except where payment on full for the Deliverables has been received by the Supplier for the Services.

 

10. INDEMNITY AND RESTRICTIONS

 

10.1 The Customer shall hereby hold harmless and indemnify the Supplier from and against any and all claims, liabilities, losses, expenses and costs (including legal and professional costs) arising out of, in connection with or relating to:

 

(a) any breach by the Customer of any terms of this Contract;

 

(b) any liability that may arise as a result of any materials, content, media, text or instructions provided by the Customer to the Supplier, or connected with any other business activity of the Supplier, infringing the Intellectual Property Rights of any third party; or

 

(c) any late or non-payment of Charges by the Customer.

 

10.2 Non-disparagement. In order to protect the legitimate business interests of the Supplier, the Customer covenants with the Supplier that it shall not at any time during the term or after termination of this Contract, say, write or do anything which may be harmful to the reputation of the Supplier, whether defamatory or otherwise.

 

11.  GENERAL

 

11.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

 

11.2 Assignment and other dealings.

 

(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

 

(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.

 

11.3 Confidentiality.  Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, materials, Intellectual Property Rights, clients or suppliers of the other party, except as permitted by Clause 11.4

 

11.4 Each party may disclose the other party’s confidential information:

(i)  to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 11.3; and

 

(ii)  as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

 

11.5 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the contract.

 

11.6 Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.  Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

 

11.7 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

 

11.8 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

 

11.9 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause 11.7 shall not affect the validity and enforceability of the rest of the Contract.

 

11.10 Notices. Any notice given to a party under or in connection with the Contract shall be sent by email to the last used email address of the relevant party.  Any notice sent by email shall be deemed to have been received at 9:00AM on the first Business Day following the date of transmission.  This Clause 11.10 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

 

11.9 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

 

11.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.

 

11.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.