In these Terms and Conditions of Business
"the Company" means Project Thirteen Design.
"the Client" means an individual, firm, company or other party with whom the Company contracts.
"the Conditions" means the Standard Terms and Conditions of Sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Client and the Company.
"the Contract" means the Contract for the provision of Services and/or Goods made between the parties in accordance with clause 2.1.
"the Goods" means the Goods (including any instalment of the Goods or any parts for or of them) which the Company is to supply in accordance with these Conditions but without limiting the generality of the foregoing including all designs, drawings. sketches, dummies,proofs, pictures, photographs, posters, leaflets, brochures, film (including the images thereon) artwork, computer data and digital images.
"the Services" means the services which the Company is to supply in accordance with these Conditions.
"Writing" includes email, cable, facsimile transmission and comparable means of communication.
"Media Owner" means publisher or other specified party.
2. Basis of the Contract
2.1 The Company shall provide the Goods and/or Services in accordance with the Contact report prepared by the Company and accepted by the Client (acceptance of the Client being implied if no objection is received by the Company within 3 days of the date of the Contact report) and/or the estimate prepared by the Company and accepted in writing by the Client and subject to these Conditions and any additional terms referred to in the Contact report and/or estimate or as agreed in accordance with clause 2.2 to the exclusion of any other terms and conditions whether of the Client or otherwise.
2.2 No variation to these Conditions shall be binding unless agreed in writing between the authorized representatives of the Client and the Company.
2.3 The Client shall not be entitled to rely on any representations statements or warranties save as set out in clause 2.1 unless specifically confirmed by the Company in writing to the Client. No representation whether oral, written or otherwise, made before or after the date of the Contract shall be part of the Contract or if made before the date of the Contract shall not be deemed to be inducement to the Client to enter into it.
2.4 Any waiver or breach of these Conditions shall not prejudice the Company's rights in respect of any subsequent breach.
3. Capacity of the Company
In all matters where applicable the Company will act as a principal and not as the agent of the Client, Media Owner or other suppliers.
Subject to any alternative fee basis specified by the Company the Client shall pay the Company for the Services and/or Goods in accordance with the following provisions:-
4.1 Where a Media Owner provides the Goods and/or Services the gross amount of the Media Owner's invoice and in addition the Company may also charge a handling fee; and
4.2 For Goods and/or Services provided by the Company such amount as stated in the estimate prepared by the Company or such amount as advised by the Company to the Client from time to time.
5.1 The Company will invoice the Client at such times as it shall in its discretion think fit and the Client will pay each invoice within 28 days from the date of such invoice.
5.2 Clause 5.1 does not apply where the Company is unable to obtain credit from a sub-contractor and therefore payment is due to the subcontractor immediately. In such case, the Client will pay the Company's invoice on presentation. The Company will not advance such amounts on behalf of the Client nor accept any liability for the consequences of late receipt.
5.3 The Company reserves the right to charge interest at 4% above Nat West's base rate on any amounts overdue from the due date until the date of payment (both before and after judgment).
6. Purchases and Client Approval
6.1 The Company undertakes not to purchase production materials or to incur costs chargeable to the Client without the Client's prior agreement, provided always that the Client's approval of copy, layouts, proofs, scripts or proposals and the provision of any of the Services and/or Goods will constitute the authority to the Company to incur such costs. The Client shall not in any event unreasonably withhold its approval of copy, layouts, proofs, scripts or proposals.
6.2 It is the Client's responsibility to approve all layouts, scripts, Polaroids or photographs, illustrations, art works and other materials prior to printing, publication or issue and the Company will not be held responsible for remedying any errors found after such approval is given howsoever arising save where the Company does not act in accordance with such approval.
7. Alterations of Ancillary Contracts
Alterations and cancellations of ancillary contracts or alterations in media and other schedules can be made only when permitted by the terms of the contract entered into by the Company with media owners or suppliers of any Goods or Services.
8. Copyright and Title
8.1 The copyright in all Services and/or Goods and, where applicable, Goods supplied, including without limitation, design, web programming, database programming, content management systems, e-commerce programming, general programming, email forwarding, hosting, photography, visuals, artwork, copy, advertising, publicity material, filmed commercials and advertisements created by the Company for the Client will vest in the Company and all such Goods supplied to the Client shall only be used directly for the purpose authorised and licensed by the Company as set out in clause 8.2.
8.2 Subject to clause 8.4 and in consideration of the remuneration the Company shall grant to the Client a non-exclusive license within the United Kingdom to use the Goods for the authorised purpose in accordance with clause 8.5.
8.3 Any other intellectual property rights other than copyright as shall exist including without limitation in the advertising and general publicity material and other Services supplied by the Company to the Client shall remain the property of the Company and shall only be used by the Client directly for the purpose authorized by the Company in accordance with the following provision:-
8.3.1 Subject to clause 8.4 and in consideration of the remuneration the Company shall grant to the Client a non-exclusive license within the United Kingdom to use such other intellectual property rights in accordance with clause 8.5.
8.4 For the avoidance of doubt no copyright or other intellectual property in any Services or Goods supplied to the Client will at any time pass to the Client and will in accordance with this clause 8 only be used by the Client under license. In addition, no license will be granted until and unless payment in full has been received by the Company in respect of the copyright or intellectual property in question.
8.5 The license to be granted in accordance with clauses 8.2 and 8.3.1 shall commence on the date of supply and/or delivery (as appropriate) for a period of 12 months and thereafter shall be renewed on an annual basis provided that the Client shall have paid all outstanding invoices due to the Company for a maximum aggregate period of 60 years or such period as prescribed or permitted by law in respect of any such intellectual property.
8.6 Any license granted by these Conditions is non assignable by the Client.
8.7 For the avoidance of doubt the Client will not authorise the use of the Goods or Services by any third party for any purpose without the prior written consent of the Company.
9.1 The Client shall indemnify the Company against all costs, expenses and damages which may be incurred by the Company as a result of any legal actions or threatened legal actions brought against the Company arising from any activity undertaken by the Company for and on behalf of the Client and for the avoidance of doubt shall indemnify the Company on a full indemnity basis in respect of any action brought against the Company by a third party for breach of any intellectual property rights of any third party as a result of the use of materials supplied by the Client to the Company.
10. Client's Property
10.1 The Company will not be responsible for the loss, damage, destruction or unauthorised use of the property of the Client entrusted to the care of the Company save as set out in clause 11 and it is the responsibility of the Client at all times to insure for its own benefit such property.
10.2 The Client must Supply any products that it is to supply to the Company at least 24 hours before work commences under the Contract and in such condition that is suitable for use under the terms of the Contract.
11. Delays and Liability
11.1 The Company will use its reasonable endeavors to comply with any date or dates for the supply of the Services and/or Goods as stated in the Contract but, unless the Contract otherwise expressly provides, such date or dates shall constitute only statements of expectation and shall not be binding. Accordingly, time of the supply of the Services and/or Goods shall not be of the essence of the Contract and if the Company fails to supply the Services and/or Goods by any specified date, such failure shall not constitute a breach of the Contract and the Client shall not be entitled to treat the Contract as thereby repudiated or to rescind it or any related Contract in whole or in part or claim compensation for such failure or for any direct or consequential loss or loss of profit or damage resulting therefrom.
11.2 If the Company shall be prevented or hindered from supplying the Services and/or Goods or any part thereof by any circumstances beyond its reasonable control, performance of the Contract shall be suspended for so long as the Company is so prevented or hindered provided that in the event that the performance of the Contract shall be suspended for more than six consecutive calendar months, the Company shall be entitled by notice in writing to the Client forthwith to terminate the Contract or cancel any outstanding part thereof. In such circumstances the Client shall pay at the rates specified above for all the Services and/or Goods supplied and materials used by the Company to the actual date of such termination. The Company shall not have any liability to the Client for any direct or consequential loss or loss of profit or damage suffered by the Client as a result of the Company's inability to perform its obligations under the Contract in the circumstances mentioned above.
11.3 Nothing in these Conditions shall operate to exclude or restrict either party's liability for death or personal injury resulting from negligence.
11.4 The Company's maximum aggregate liability for direct damage for loss of or damage to property of the Client shall be limited to £10,000. The Company shall only be liable for negligent acts or omissions causing damage and where it has first been given the opportunity to rectify such situations and if it fails to do so, to a maximum aggregate liability of £10,000.
11.5 Save as set out in clauses 11.3 and 11.4 the Company shall not be liable for any loss damage or claims howsoever arising and in particular for any indirect or consequential loss or damage, costs, expenses or other claims, lost revenues or profits.
11.6 Without prejudice to the generality of the foregoing nothing herein contained shall operate to exclude or restrict liability for breach of any obligation arising from the Supply of Goods and Services Act 1982 as against the Client if he is dealing as a Consumer as defined by Section 12 of the Unfair Contract Terms Act 1977.
11.7 Where visuals are provided by the Company to the Client such visuals are provided for reference only and in no way can accurately represent the final products and the Company accepts no liability for any variance between the visuals produced and the final product developed for the Client.
11.8 Save as may be excluded by law the Company's entire liability under any valid claim in respect of any of the Goods or Services supplied based on defect in quality or condition or a failure to meet specification shall be either at their option to replace the Goods free of charge or undertake the Services and/or Goods again for the Client free of charge or refund to the Client the price of the Goods and/or Services but the Company shall have no further liability to the Client.
11.9 The Company shall not be liable for any claim or claims for indirect consequential loss or damage made by the Client against the Company that arise out of any third party security breaches of any website produced created or hosted by the Company that are not within the Company's reasonable control.
11.10 The Company shall not be liable for any claim or claims for indirect or consequential loss or damage made by the Client against the Company that arise out of the failure or fault in any equipment, server or telecommunications of the Company that may affect the transmission of any website.
12.1 All deliveries will be charged at cost and any fee charged or incurred by the Company in the course of fulfilling the Contract shall be passed to the Client being the cost to the Company plus a small administration charge as notified from time to time and in addition the cost of any postage and packing.
12.2 The Company shall not be liable for any variance in the quantities of Goods which does not exceed 10% over or under the quantity ordered. Such shortage or excess will be deducted from or charged on the invoice.
13. Photo Shoots
13.1 In the event that the Company is requested to undertake photo shoots on behalf of a Client then and in such case the styling, set design, props, art direction and casting of models is left to the entire discretion of the Company.
13.2 In the event that a Client or their representative attends a photo shoot, then any photographic shot taken by the Company at the request of the Client or their representative, shall be taken as approved.
13.3 If for any reason outside of the control of the Company any photo shoot is cancelled, then the Company reserves the right to charge up to 50% of the original estimated cost, such amount being a genuine pre-estimate of the loss suffered by the Company.
If any Contract is cancelled by the Client such cancellation must be notified to the Company in writing and the Company will invoice the Client pro rata according to the effort and expense incurred together with any further expense incurred by the Company whether before or after the date of cancellation where the Company is unable to prevent further cost being involved whether by reason of the fact that work has already been carried out by sub-contractors or otherwise and any payment due pursuant to this clause shall be due within seven days of notification after cancellation of the amount payable such amount in any event to be a genuine pre-estimate of the loss suffered by the Company.
14.1 Clients taking advantage of the first year free hosting offer, must renew the hosting package for at least one year. If this is not adhered to, the first year free hosting offer is null and void and the hosting for the first year must be paid in full.
Without prejudice to any other remedies which the Company may have, the Company shall in respect of all debts due and payable by the Client to the Company have a general lien on all goods and property belonging to the Client in its possession and shall be entitled upon the expiration of fourteen days notice to the Client to dispose of such Goods or property as it thinks fit and to apply any proceeds of sale thereof to the payment of such debts.
16. Insolvency and Breach of Contract
In the event that.
16.1 The Client shall commit any breach of the Contract and shall fail to remedy such breach (if capable of remedy) within a period of 30 days from receipt of notice in writing from the Company requesting such remedy; or
16.2 Any distress or execution is levied upon any of the Goods or property of the Client; or
16.3 The Client offers to make any arrangement with or for the benefit of its creditors or commits any act of bankruptcy or being a limited company, has a Receiver appointed of the whole or any part of its undertaking property or assets; or
16.4 Any order is made or a resolution is passed or analogous proceedings are taken for the winding up of the Client (save for the purpose of reconstruction or amalgamation without insolvency and previously approved in writing by the Company). then and in any such case the Company shall be entitled without prejudice to its other rights hereunder forthwith to suspend all further supplies of the Services and/or Goods until the default has been made good or determine at any time the Contract or any unfulfilled part thereof or at the Company's option to make partial supplies of the Services and/or Goods. Notwithstanding any such termination, the Client shall pay the Company at the rates specified above for all Services and/or Goods supplied and work done and materials used by the Company up to and including the date of termination.
16.5 Notwithstanding delivery and the passing of risk in the Goods, or any other provisions of these Conditions, the property in the Goods shall not pass to the Client until the Company has received in cash or cleared funds payment in full of the price of the Goods and all other Goods agreed to be sold by the Company to the Client for which payment is then due.
16.6 Until such time as the property in the Goods passes to the Client, the Client shall hold the Goods as the Company's fiduciary agent and bailee, and shall keep the Goods separate from those of the Client and third parties and properly stored, protected and insured and identified as the Company's, but shall be entitled to resell or use the Goods in the ordinary course of its business.
16.7 Until such time as the property in the Goods passes to the Client (and provided the Goods are still in existence and have not been resold), the Company shall be entitled at any time to require the Client to deliver up the Goods to the Company and if the Client fails to do so forthwith, to enter upon any premises of the Client or any third party where the Goods are stored and repossess the Goods.
16.8 The Client shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company but if the Client does so all moneys owing by the Client to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
17.1 If the Company is a member of a group of companies the Company may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group provided that any act or omission of any such other member shall be deemed to be the act or omission of the Company.
17.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
17.3 If any provision of these Conditions is held by any competent authority to be invalid on unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall be effective.
17.4 The Contract shall be governed by the laws of England and the Client agrees to submit to the non-exclusive jurisdiction of the English Courts.
17.5 The Company shall be entitled to apply any sums due to the Client in or towards payment of any sum owing to the Company by the Client in relation to any matter whatsoever.
17.6 Risk in respect of Goods shall pass to the Client on delivery or when collected by the Client from the Company's premises.
17.7 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Contract. No person who is not a party to the Contract shall have the right under the said Act or otherwise to enforce any term of the Contract.
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Project Thirteen DesignUnit 13, Rural Enterprise Centre, EcoBusiness Park, Ludlow, Shropshire, SY8 1FF