1.1. The Definitions set out in this Condition 1 apply to the Contract:
1.1.1. Contract: the agreement made between the Company and the Client, as set out in these Conditions,
1.1.2. Client: the person, firm or company referred to in the Quotation who purchases Services, unless expressly informed to do otherwise in writing and consent is received in writing to proceed from the nominated third party;
1.1.3. Client Material: all documents, information and materials provided by the Client relating to the Services including (without limitation), computer programs, information, materials, copy, data, reports and specifications;
1.1.4. Company: Elliott Young Limited, a company incorporated in England and Wales with company number 5069996, incorporated in England and Wales. Registered address: 11 Monoux Road, Wooton, Bedfordshire MK43 9JR. Trading from 115 Millennium Studios, Bedford Technology Park, Thurleigh, Bedfordshire, MK44 2YP.
1.1.5. Deliverables: all documents, products, digital content and/or materials in any form, including computer programs, data, reports and specifications (developed by the Company or its agents or subcontractors) and delivered in relation to the Services;
Goods: the goods (including any part or parts of them) to be provided by the Company under the Contract to the Client as set out in the Quotation
1.1.6. 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;
1.1.7. Pre-existing Materials: all documents, information and materials provided by the Company relating to the Services which existed prior to the commencement of the Contract including computer programs, data, reports and specifications;
1.1.8. Quotation: the estimate for Services provided by the Company to the Client;
1.1.9. Services: the Services provided by the Company under the Contract as set out in the Quotation, together with any other Services which the Company provides, or agrees to provide, to the Client;
1.2. These Conditions shall prevail over any Client terms of business offered by or on behalf of the Client, or implied by law, trade custom, practice or course of dealing. The Client’s standard terms and conditions (if any) shall be deemed to be expressly rejected by the Company.
2. Formation of the Contract
2.1. The acceptance of a Quotation for Services by the Company constitutes an offer by the Client to purchase the Services specified in it on these Conditions. The Client will be deemed to have accepted a Quotation when it either signs the Quotation or otherwise communicates to the Company (for example, in written email format) that it has accepted the Quotation. The Contract is deemed to commence on the earlier of:
2.1.1. a written acknowledgement issued and executed by the Company; or
2.1.2. by the Company starting to provide the Services.
2.2. Any Quotations are valid for thirty days from the date of the Quotation, provided that the Company has not previously withdrawn it in writing.
2.3. The Client acknowledges that it enters into the Contract in the course of its business and not as a consumer.
3. The Company’s Obligations
3.1. The Company shall use reasonable endeavours to provide the Services, and to deliver the Deliverables to the Client, in accordance with the Quotation.
3.1.2. The Company shall use reasonable endeavours to meet any delivery and/or performance dates specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence for the supply of the Goods and/or performance of Services.
4. Client’s Obligations
4.1. The Client shall:
4.1.1. co-operate with the Company in all matters relating to the Services;
4.1.2. provide to the Company, in a timely manner, such Client Material and other information as the Company may reasonably require and ensure that such information is accurate in all material respects;
4.1.3. ensure that all Client Material is owned by the Client, or, if not, ensure that the Client has permission from the legal owner to enable the Company to legitimately use the Client Material in the provision of the Services;
4.1.4. the Client acknowledges that the late supply of Client Material may have an impact on the Company’s ability to deliver the Services. If the Company’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, the Company shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.
4.1.5. The Client shall indemnify the Company, from and against, all costs, charges or losses sustained or incurred by the Company arising directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Client in writing.
4.1.6. The Client shall indemnify the Company against all losses, costs or charges it may incur arising as a result of any action, claim or threatened claim (as applicable) that the Company’s use of the Client Material in accordance with the Contract constitutes an infringement of the intellectual property rights of a third party.
4.1.7. The Client shall not, without the prior written consent of the Company, at any time from the date of the Contract to the expiry of one year after the last date of supply of the Services, solicit or entice away from the Company or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of the Company in the provision of the Services. In the event of a breach (or threat of a breach) of this agreement, the Company is entitled to immediate and appropriate injunctive relief, or a decree of specific performance of this agreement, without the necessity of showing any irreparable injury or special damages.
5. Charges and Payment
5.1. The Company shall charge such costs, charges and expenses as shall be agreed in writing with the Client for the supply of any Services.
5.2. For new clients, payment for the full or part amount may be requested in advance of commencement of work; for specific payment terms please refer to the Contract. Client credit screening may affect subsequent credit agreements.
5.3. Once a client has agreed to the Company’s current credit account terms and conditions, the Company shall invoice monthly or on completion of project stage, or the relevant hourly charge as outlined in the Contract. All such invoices shall be paid in full within 30 days of the date of invoice, unless otherwise agreed in writing.
5.4. All charges quoted to the Client shall be exclusive of VAT, which shall be added to its invoices at the appropriate rate.
5.5. All charges listed in Quotations are estimates and are based on the Company’s current costs of production and are subject to amendment on or at any time after acceptance by the Client to cover any rise or fall in such costs.
5.6. All preliminary work shall, unless agreed expressly otherwise, be charged to the Client.
5.7. All additional work requested by the Client, which is requested following commencement of the Services and which is outside the scope of the Quotation (including any Services necessarily procured in order to carry out the Services) shall be regarded as additional to the cost given in the Quotation and will be invoiced separately.
5.8. The Company will not be required to make substantial advance payments or enter substantial financial commitments on behalf of the Client and, if so requested the Client will, upon request, pay the amount of such commitments immediately to the Company.
5.9. The Client shall be entitled to request up to the pre-agreed number of amendments (as outlined in the Contract) to the design work/artwork supplied for approval. Any amendments requested by the Client in addition to the permitted amendments will be deemed to be additional work and will be quoted and charged at the Company’s standard rate card. The Company will receive full payment upon approval of final artwork before supplying raw artwork files to the client.
5.10. The Company’s liability for defects in the Deliverables shall be limited to the replacement of the Deliverables at no additional cost to the Client, provided always that such defect is notified to the Company within a reasonable time and the Deliverables have been returned to the Company for inspection.
5.11. Once the Client has approved the Deliverables all further design work requested by the Client will be charged in accordance with the current rate card of the Company.
5.12. The parties agree that the Company may review and increase its standard hourly fee rates at any time, provided that such charges cannot be increased more than once in any 12 (twelve) month period. The Company will provide the Client with written notice of any such increase one (1) month before the proposed date of the increase. If such increase is not acceptable to the Client, it may, within two (2) weeks of such notice being received or deemed to have been received in accordance with this condition 6.11, terminate the Contract by giving three (3) months written notice to the Company.
5.13. Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Company on the due date, the Company may:
5.13.1 charge interest on such sum under the Late Payment of Commercial Debts (Interest) Act 1998; from the Due Date , accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Client shall pay the interest immediately on demand; and
5.13.2 suspend all Services until payment has been made in full.
5.14. Time for payment shall be of the essence of the Contract.
5.15. All sums payable to the Company under the Contract shall become due immediately on its termination. This condition 6.14 is without prejudice to any right to claim for interest.
5.16. The Company may, without prejudice to any other rights it may have, set off any liability of the Client to the Company against any liability of the Company to the Client.
6. Authority & Proofs
6.1. Written or oral approval by the Client of designs, drafts, proofs or estimates may be taken by the Company as authorisation to proceed to print/production and to enter into contracts with suppliers based on such quotes.
6.1.2. Proofs of all work may be submitted for the Client’s approval and the Company shall not be liable for errors not corrected by the Client in such proofs. The Client’s alterations and additional proofs necessitated thereby shall be charged in additional charges. No responsibility will be accepted for any more errors in proofs approved by the Client.
7. Property and Risk in Goods
7.1 The Client shall be deemed to have accepted the Goods and Services on delivery but the Company shall retain ownership of all materials and Goods produced by it to the order of the Client until the Goods and Services provided to the Client have been paid for in full.
7.2. The risk in the Goods shall pass to the Client upon delivery, which for the avoidance of doubt means from the commencement of unloading activities or when collected from the Company by the Client or its agent as the case may be.
7.3. Any material made available to the Company by or on behalf of the Client shall, while it is in the possession of the Company shall not be liable for any damage to such materials however caused and the Client shall insure the said material accordingly.
8. Website Design and Development
8.1. Where requested by the Client, the Company will design and build a website or develop the Client’s website based on the brief agreed between the Client and the Company.
8.2. Payment for the Services shall be made in accordance with condition 5 above. The balance of the Company’s charges must be paid prior to the website going live. If any charges are not paid on or before the date for payment, the Company may suspend the provision of the Services and the Company will not upload the website to the Client’s server or supply the website files to the Client for use on any third party hosting server.
8.3. Once the Company has been paid in full for its website design and development Services, the Company will provide a version of the Client’s website to the Client for the Client’s review and approval. Once approval has been given by any means, which can include by email or verbally, the Company will release the website to the Client. On approval, the Company will have no liability for any errors or downtime due to further changes being made to the website by the Client or any third parties.
8.4. The Company reserves the right to refuse to handle any material that it considers to be offensive, illegal or controversial.
8.5. Unless agreed otherwise, the Client agrees that the Company shall be free to use any ideas, concepts, know how or techniques used in the construction of the Client’s website for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products and any other items incorporating such information.
9. Website Hosting and Maintenance Services
9.1. Where requested by the Client, the Company will procure website hosting and maintenance Services. The Company will use reasonable endeavours to provide a reliable and professional service.
9.2. Payment for hosting and maintenance must be paid in advance unless agreed otherwise, in which case, the Client must set up a standing order or direct debit to pay the Company’s charges on a monthly basis. The Company reserves the right to deactivate the Client’s website where the hosting and/or maintenance fees are not paid on time. The Company may charge an administration fee, in line with its current rate card, for reactivating the Client’s website.
9.3. The Company cannot guarantee that website hosting will be available to the Client at all times, especially in the event of a failure beyond the Company’s control.
9.4. For the purpose of maintenance Services, website hosting may have to be suspended for short periods of time; this will be timed to cause minimum service disruption and the Company will endeavour to notify the Client of any such periods in advance.
9.5. As the Company engages third parties for website hosting and maintenance, the Company will have no liability in respect of these Services. The Client should make any issue or claim in relation to hosting to the hosting company, details of which shall be provided to the Client by the Company.
10. Digital Marketing, Search Engine Optimisation (SEO) Services
10.1. This Service is offered as part of a website build and design project only.
10.2. Company will provide the Digital Marketing Services detailed in the Quotation; such Services shall include only initial SEO and no on-going SEO Services shall be provided unless otherwise requested and agreed separately.
10.3. The Company will use reasonable endeavours to improve the position of the Client’s search engine results, but do not guarantee any specific placement or higher placement on search engine results.
10.4. The Company will have no liability for any changes in position of the Client’s website on search engine results and the Client acknowledges that the Company has no control over the policies of search engines with respect to the type of website and/or content that they accept or the way in which websites are ranked either now or in the future.
10.5. Where the Company recommends that the Client takes certain technical actions in order to allow the Company to provide the Services detailed in this condition 9 then the Client agrees to implement such recommendations. Where the Client fails to do so it acknowledges that the Company will not be liable for failing to perform such Services.
11. Intellectual Property Rights
11.1. Unless otherwise agreed in writing (for example, where the Company agrees to licence the design and code of a website to the Client for an annual fee), all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials (excluding any Client Material) shall be owned by the Company.
11.3. Subject to condition 10.4, the Company licenses all such rights referred to in condition 10.1 to the Client free of charge and on a nonexclusive, worldwide basis to such extent as is necessary to enable the Client to make use of the website, the Deliverables and the Services. This licence is terminated with immediate effect as soon as any invoice becomes overdue. In the event that the Client wishes to use the Deliverables and/or any of the Intellectual Property Rights for purposes outside of the scope of the Contract, [as set out in the Quotation] prior to any such use the Client shall obtain the prior written agreement of The Company on commercial terms to be agreed.
11.4. The Client grants the Company a licence to the Client Material in order to provide the Services.
11.5. The Client acknowledges that where the Company does not own the Pre-existing Materials, the Client’s use of rights in Pre-existing Materials is conditional on the Company obtaining a written licence from the relevant licensor.
12.Limitation Of Liability
12.1 This condition sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Client in respect of: any breach of the Contract;
12.1.2. any use made by the Client of the Services, the Deliverables or any part of them; and
12.1.3. any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
12.2. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
12.3. Nothing in these Conditions limits or excludes the liability of the Company:
12.3.1. for death or personal injury resulting from negligence; or
12.3.2.for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by the Company.
12.4. Subject to condition 12.2 and condition 12.3 the Company shall not be liable for loss of business; or loss of goods; or loss of contract; or loss of use, for example, including but not limited to the Client’s website being unavailable; or loss of corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
12.5. The Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to an amount equal to the charges paid for the Services in the six months immediately preceding the event which gave rise to the claim.
13.1. Either party may terminate the Contract without liability to the other on giving the other no less than 30 days written notice to the other party (with the exception of hosting contracts which require no less than 12 weeks notice):
13.1.2. Without prejudice to any other rights or remedies which the parties may have either party may terminate the Contract immediately upon written notice in the event that;
13.1.2. the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 (fourteen) days of that party being notified in writing of the breach; or
13.1.3. the other party repeatedly breaches any of the terms of the Contract 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 the Contract; or
13.1.4. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or 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 (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
13.1.5. 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 proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
13.1.6. 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 other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
13.1.7. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or
13.1.8. a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
13.1.9 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
13.1.10. 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
13.1.11. 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 condition 15.3.3 to condition 15.3.9 (inclusive); or
13.1.12. the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
13.2. The Company may terminate the Contract on one month’s written notice if there is a change of “control” of the Client (as defined in section 574 of the Capital Allowances Act 2001).
13.3. On termination of the Contract for any reason:
13.3.1. the Client shall immediately pay to the Company all outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt;
13.3.2. the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
13.4. On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect: condition 10; condition 11; condition 12; condition 13; and condition 15.12.
14.1. Both parties 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 by one party to the other party, or to that party’s employees, agents, consultants or subcontractors and any other confidential information concerning that party’s business or products which the other party may obtain during the delivery of the Services.
14.2. Either party may disclose such information:
14.2.1. to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out its obligations under the Contract; and
14.2.2. as may be required by law, court order or any governmental or regulatory authority.
14.3. Both parties shall ensure that their employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition.
14.4. Neither party shall not use any such information for any purpose other than to perform its obligations under the Contract.
15.1 Force majeure:
15.1.1. For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
15.1.2. The Supplier shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
15.1.3. If the Force Majeure Event prevents the Supplier from providing any of the Services for more than two weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.
15.2 Assignment and subcontracting:
15.2.1. The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
15.2.2. The Client shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
15.3.1. Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.
15.3.2. Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
15.3.3. This clause 15.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
15.4.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
15.4.2. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
15.5.1 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
15.5.2. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
15.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
15.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
15.8 Variation: Any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by the Supplier.
15.9 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.