Terms and Conditions
TERMS AND CONDITIONS
1 Definitions and interpretation
1.1 Definitions In these Terms and Conditions: “Agreement” means the agreement containing these Terms and Conditions; “Client” means the party named in the Supplier’s estimate or proposal as the purchaser of the Services; “Deliverables” means the product of the Services; “Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in 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 existing and future rights capable of present assignment, applications for and renewals or extensions of and rights to claim priority from such rights, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world; “Materials” means the copy, artwork, layouts, designs, paper, printed material or electronics files that are supplied by the Client (or on the Client’s behalf) to the Supplier and which are to be used by the Supplier to provide the Services or are to be the subject of the Services; and “Services” means the provision of website design, maintenance and/or hosting services (as applicable) by the Supplier to the Client as specified in an estimate or as agreed by the parties.
1.2 Interpretation (a) Words importing any gender include every gender. (b) Words importing the singular number include the plural number and vice versa. (c) Words importing persons include firms, companies and corporations and vice versa. (d) References to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement. (e) Reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule. (f) Any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done. (g) The headings to the clauses, schedules and paragraphs of this Agreement are not to affect the interpretation. (h) Any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment. (i) Where the word ‘including’ is used in this Agreement, it shall be understood as meaning ‘including without limitation’. (j) Where the phrase ‘private limited company’ is used in this Agreement, it shall be understood as including a limited liability partnership.
2.1 Where the Supplier provides an estimate for the provision of Services, and that estimate is used as, or forms, the basis of an order placed by the Client, the Supplier may vary the amount the Supplier charges the Client as against the estimate if on sight by the Supplier of any Materials: (a) there is a difference between what is specified in the estimate and the Materials provided; or (b) what is ordered is different to what is stated in the estimate, and the Supplier shall be entitled to amend (upwards or downwards) any prices or costs provided in the estimate to reflect the costs of production and raw materials which are to be used in the provision of the Services after the date of the Client’s order.
2.2 Any prices or costs stated in any estimate(s) provided to the Client shall remaining valid for a period of 30 days from the date of the estimate.
3.1 After the Client places an order, a binding contract shall only come into effect when the Supplier notifies the Client in writing that it accepts that order.
3.2 The Supplier shall use reasonable endeavours to complete the Services by the date specified in the estimate or order or the date(s) agreed by the parties. Time shall not be of the essence for: (a) any dates or times when Services are due to be performed; or (b) the length of time that any part of the Services will take to perform as stated in this Agreement, any estimate, any order, or as agreed by the parties; or (c) any date or time any of the Services will be completed by as stated in this Agreement, any estimate, any order, or as agreed by the parties.
3.3 The Client shall pay for all Services or other work or services provided by the Supplier to the Client even though not contained or stated in an estimate or an order, including, but not be limited to: (a) any Services, work or services provided: (b) on an experimental, testing or evaluative basis; (c) in connection with correcting, amending or redoing any Materials and necessary or required in order to provide the Services in accordance with an estimate or order; or (d) alterations, amendments or corrections made or requested to be made by the Client including after the receipt of proofs by the Client.
3.4 Where the Client allows the Supplier to propose, decide or use its judgment as to design, layout, type style, typeface, style etc of any material then, if the Client wishes to make any changes, alterations or amendments, the Client shall pay for such changes, alterations or amendments.
4 Client responsibilities
4.1 The Client acknowledges that the Supplier’s ability to provide the Services is dependent upon the full and timely co-operation of the Client (which the Client agrees to provide), as well as the accuracy and completeness of any specification, information and data the Client provides to the Supplier. Accordingly, the Client shall provide the Supplier with access to, and use of, all information, data and documentation reasonably required by the Supplier for the performance by the Supplier of its obligations under this Agreement.
4.2 In addition to the obligations of the Client as otherwise specified in this Agreement, the Client shall be solely responsible for the following: (a) the accuracy and content of any information provided by the Client to the Supplier; and (b) any information, programs and other information that the Client receives as a result of the use of the Services, including without limitation, the entire responsibility of any losses of data, programs, breaches of security, viruses and disabling or harmful devices that the Client may download or otherwise experience as a result of the Client’s use of the Services.
4.3 The Client agrees to use the Services in a manner consistent with any and all applicable laws and regulations.
5 Domain names
5.1 The default position under this Agreement is that the Client shall be responsible for obtaining its own domain name.
5.2 If the Client instructs the Supplier to obtain a domain name for the Client: (a) the Supplier shall act as an agent for the Client in dealing with the relevant domain name registration authority. The contract for the domain name shall be between the Client and the relevant domain name registration authority and the Client agrees that it shall be solely responsible for renewals, and for legal, technical, administrative, billing or other requirements imposed by the relevant domain name registration authority (and relevant costs and expenses thereof); and (b) the Supplier gives no warranty that the domain name requested shall not infringe the rights of any third party and all such enquiries shall be the responsibility of the Client. The domain name shall form part of the Client’s Intellectual Property Rights for the purposes of this Agreement.
5.3 If the Supplier licenses to the Client an IP address as part of the Services, such IP address shall (to the extent permitted by law) revert to the Supplier after expiry or termination of this agreement for any reason, whereupon the Client shall cease using the address. At any time after such expiry or termination, the Supplier may re-assign the address to another user.
6 Hosting services
6.1 The Client may opt to procure its own server hosting and solely engage the Supplier to provide certain website design and maintenance services.
6.2 If the Client procures its own server hosting then the Supplier shall grant the Supplier access to the server to enable it to supply the Services.
6.3 If the Services include hosting services: (a) the Supplier agrees to provide to the Client such hosting services on the terms described in this Agreement. The Supplier agrees to place the ‘homepage’ created by the Supplier for the Client in accordance with this Agreement on the computer server owned or operated by the Company and allow storage of information received by the Client or from the general public on such server on a monthly basis subject to the relevant licensor’s standard terms; (b) the one-off licence fee for such hosting is included in the charges as set out in the Supplier’s quotation; (c) the Supplier shall grant the Client access to the server in order to update information held on the website; and (d) upon payment of all sums due to the Supplier, the Supplier shall transfer ownership of the server to the Client subject to the relevant licensor’s standard terms.
7 Site content
7.1 The Supplier shall update the website with Materials provided from time to time by the Client. The Client 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) (“Inappropriate Content”).
7.2 The Client acknowledges that the Supplier has no control over any content placed on the website by visitors and does not purport to monitor the content of the website. The Supplier reserves the right to remove content from the website where it reasonably suspects such content is Inappropriate Content. The Supplier shall notify the Client promptly if it becomes aware of any allegation that any content on the website may be Inappropriate Content.
7.3 The Client shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content.
7.4 The Supplier may include the statement “Designed by Shibui Design” on the home page of the website in a form to be agreed.
8.1 All Intellectual Property Rights in the website (including in the content of the website and the software for the website commissioned by the Client, but excluding the Materials, arising in connection with this Agreement shall be the property of the Supplier, and the Supplier hereby grants the Client a non-exclusive licence of such Intellectual Property Rights for the purpose of operating the Website.
9 Acknowledgment of examination The Client acknowledges and agrees that delivery of the Deliverables to the Client shall be conclusive evidence that the Client has examined the Deliverables and that the Deliverables is in conformity with the contract description, in good order and condition, of satisfactory quality and fit for any purpose for which it may be required.
10 Materials provided electronically
10.1 If the Client provides Materials to the Supplier by electronic means (“Electronic Files”), the Supplier shall not be responsible for checking: (a) (where the Materials consist of copy) the accuracy of the content, including but not limited to checking whether the copy is spelt correctly, is grammatically correct, or formatted in accordance with any specification, layout or design or in accordance with any estimate or order; (b) (where the Materials consist of artwork or layouts) whether the artwork or layouts are positioned correctly on a page or in accordance with any instructions as to how the artwork or layout are to be reproduced or printed; or (c) (where Materials are supplied as a file ready for reproduction (and then for the production of Deliverables)) any of the contents, layout or commands, markings, formatting or other matters.
11.1 The Supplier’s charges shall be as set out in the quotation.
11.2 Where the Client wishes to purchase additional services, the Supplier’s charges shall be calculated on the amount of time spent by the Supplier the following applies: (a) “day” shall mean a period of 7 hours. Where the work carried out in performing the Services exceeds the period of 7 hours, then that period shall be charged at the pro-rated rate for a day; and (b) where the Supplier’s fees are based on an hourly rate, any time spent which is less than an hour shall be charged on a pro-rated basis.
12.1 The Client shall pay for the Services on the date stated in the estimate or order, or if no date is stated, within 30 days of the date of the Supplier’s invoice in respect of Services specified in the invoice.
12.2 All amounts stated are exclusive of VAT and any other applicable taxes, which shall be charged in addition at the rate in force at the time the Client is required to make payment.
12.3 If the Client does not make a payment by any due date or the date stated in an invoice or as otherwise provided for in this Agreement then the Supplier shall be entitled to: (a) charge interest on the outstanding amount at the rate of 8% a year above the base lending rate of the Bank of England, accruing daily; (b) require the Client to pay in advance for any Services (or any part of them) which have not yet been performed; and (c) not perform any further Services (or any part of them).
12.4 When making a payment the Client shall quote any relevant reference numbers and the invoice number.
13 Use of sub-contractors
13.1 The Supplier is permitted to use other persons to provide some or all of the Services.
13.2 The Supplier shall be responsible for the work of a sub-contractor to the same standard as stated in this Agreement and the specification. However, the parties acknowledge and agree that some sub-contractors have their own terms and conditions on which the sub-contractor trades and which are more restrictive than those in this Agreement. For example, without limiting the generality of the above, a sub-contractor may have more restrictive wording as to the standard they will reach in work they perform (as to timing or quality), what is to happen if that standard is not reached or met, issues concerning the restriction and exclusion of liability, and so on). Where the terms and conditions of a sub-contractor are more restrictive or exclusory than the provisions of this Agreement, the parties agree that work provided by a sub-contractor will be governed by the terms and conditions of the sub-contractor rather than the provisions of this Agreement.
14 Warranties, liability and indemnities
14.1 The Supplier warrants that it will use reasonable care and skill in performing the Services.
14.2 If the Supplier performs the Services (or any part of the Services) negligently or materially in breach of this Agreement, then if requested by the Client, the Supplier will re-perform the relevant part of the Services. The Client’s request must be made within 14 days of the date the Supplier completed performing the Services.
14.3 The Supplier provides no warranty that any result or objective can be or will be achieved or attained at all or by a given date for the completion of the performance of the Services or any other date, whether stated in this Agreement or elsewhere.
14.4 Except in the case of death or personal injury caused by the Supplier’s negligence, the liability of the Supplier under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever shall not exceed the fee(s) paid by the Client to the Supplier under this Agreement. The provisions of this clause 14.4 shall not apply to clause 14.6.
14.5 Neither party shall be liable to the other party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this clause 14.5 shall not apply to clause 14.6.
14.6 The Client shall indemnify and hold harmless the Supplier from and against all Claims and Losses arising from loss, damage, liability, injury to the Supplier, its employees and third parties, infringement of third party intellectual property, or third party losses or liability by reason of the provision Services or supply of Deliverables, or arising out of any information supplied to the Client by the Supplier, its employees or suppliers, or supplied to the Supplier by the Client within or without the scope of this Agreement. “Claims” shall mean all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise); and “Losses” shall mean all losses including without limitation financial losses, damages, legal costs and other expenses of any nature whatsoever.
14.7 Each of the parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law. Nothing in this Agreement excludes liability for fraud.
15.1 This Agreement shall be effective from the date stated for a period of one year and thereafter from year to year subject to earlier termination as set out in this clause unless and until either party gives to the other not less than 30 days’ notice in writing.
15.2 Either party shall be entitled immediately to terminate this Agreement by written notice to the other if: (a) that other party commits any material breach of this Agreement and, in the case of a breach capable of remedy, fails to remedy the breach within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; (b) an encumbrancer takes possession or a receiver is appointed over any of the property or assets of that other party; (c) that other party makes any voluntary arrangement with its creditors or becomes subject to an administration order; or (d) that other party goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting there-from effectively agrees to be bound by or assume the obligations imposed on that other party under this Agreement).
15.3 On termination of this Agreement the Client shall pay for all Services provided up to the date of termination, and for all expenditure falling due for payment after the date of termination from commitments reasonably and necessarily incurred by the Supplier for the performance of the Services prior to the date of termination.
16 Data protection Both parties shall comply with all applicable data protection legislation and regulations in force (including but not limited to Council Regulation (EU) 2016/679 and the Data Protection Act 2018, and any modifications or re-enactments of them for the time being in force).
17.1 Force majeure. Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement that result from circumstances beyond the reasonable control of that party. The party affected by such circumstances shall promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances exist for a continuous period of more than 6 months, either party may terminate this Agreement by written notice to the other party.
17.2 Amendments. This Agreement may only be amended in writing signed by duly authorised representatives of the parties.
17.3 Assignment. Subject to the following sentence, neither party may assign, delegate, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other party. A party may, however, assign and transfer all its rights and obligations under this Agreement to any person to whom it transfers all of its business, provided that the assignee undertakes in writing to the other party to be bound by the obligations of the assignor under this Agreement.
17.4 Entire agreement. This Agreement contains the whole agreement between the parties in respect of the subject matter of this Agreement and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.
17.5 Waiver. No failure or delay by the Supplier in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
17.6 Severance. If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
17.7 Notices. Any notice to be given under this Agreement shall be in writing and shall be sent by first class mail or air mail, or by fax or email (confirmed by first class mail or air mail), to the address of the relevant party set out at the head of this Agreement, or to the relevant fax number set out below, or such other address or fax number as that party may from time to time notify to the other party in accordance with this clause 17.7. The relevant contact information for the parties is as follows as set out in the order or estimate.
17.8 Law and jurisdiction. The validity, construction and performance of this Agreement shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the parties submit.
17.9 Third parties. For the purposes of the Contracts (Rights of Third Parties) Act 1999 and this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions. Notice All notices, requests, demands or other communications required or permitted by the terms of this Agreement will be given in writing and delivered to the Parties at the following addresses:
Shibui Design Ltd, Crow Studios, 29 Great Northern Road, Derby, DE1 1LR