Terms & Conditions of Business

The following terms and conditions refer to Think Design Manchester Limited (10674812) with registered address Tower House, 269, Horsfield Smith, Walmersley Road, Bury, BL9 6NX (“The Agency”) and its relationship with its Customers.

1.1 Definitions:

1.1.1. Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

1.1.2 Charges: the charges payable by the Customer for the supply of the Services in accordance with Clause 6.

1.1.3 Commencement Date: the date of this Agreement, or if different, the date that the first of the Services is provided by the Agency.

1.1.4 Conditions: these terms and conditions as amended from time to time in accordance with Clause 15.8.

1.1.5 Contract: the contract between the Agency and the Customer for the supply of Services in accordance with these Conditions.

1.1.6 Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

1.1.7 Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.

1.1.8 Customer: the person or firm who purchases Services from the Agency.

1.1.9 Customer Default: has the meaning set out in Clause 4.2.

1.1.10 Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party

1.1.11 Deliverables: the deliverables set out in the Order produced by the Agency for the Customer.

1.1.12 Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, 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.

1.1.13 Order: the Customer’s order for Services as set out in the Customer’s purchase order form, the Customer’s written acceptance of a quotation/Return Brief by the Agency or overleaf, as the case may be.

1.1.14 Project Brief: the detail of what the Customer is enquiring for the Agency to quote for when making the initial enquiry of the Agency

1.1.15 Return Brief: the response of the Agency to a Project Brief including details of a quotation for the Agency to complete the services detailed in the Project Brief and/or additional information required for the Agency to provide a quotation

1.1.16 Services: the services, including the Deliverables, supplied or to be supplied by the Agency to the Customer as set out in the Specification.

1.1.17 Specification: the description or specification of the Services to be provided by the Agency to the Customer set out in the form of a final Return Brief agreed prior to commencement of the delivery of the Services.

1.1.18 UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

1.2 General Interpretation:

1.2.1 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

1.2.2 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.2.3 A reference to writing or written includes fax and email.

2.1 When provided a Project Brief by a Customer the Agency, if prepared to accept the Project Brief, will reply with a Return Brief which shall contain either a quotation for providing the Services or a request for additional information required to provide the quotation.

2.2 Once a Return Brief contains a quotation for providing the Services is produced to the Customer it is valid for 30 days from the date of submission. Such a quotation does not in itself form a contract unless accepted by the Customer in writing.

2.3 Return Briefs containing quotes/estimates are based on the information provided by the Customer, including but not limited to detail on quantities, structure, scope and functionality. Any quote/estimate may therefore be subject to change should the Customer’s requirements change at any time.

2.3. Unless otherwise stated, photography, stock images, delivery, copywriting and VAT will be charged extra.

2.4. If the contract or hourly price has not been fixed for the term of a contract, the Agency’s hourly rate of £50 will apply.

2.5. The Agency reserves the right to alter the hourly rate at any time as business needs dictate, subject to notifying the Customer at the relevant time.

2.6. Quotes/estimates are based on the Agency’s current costs of production and unless otherwise agreed are subject to amendment on or at any time after acceptance to meet any rise or fall in such costs, including but not limited to the costs of any materials required to meet the Order.

2.7. Any estimates given by The Agency as to the time of completion or performance of  the Services (whether completion of the whole or a part of those services) shall be estimates only and time shall not be of the essence.

2.8. Any stated timescale is reliant upon the Customer providing all required information/ copy/images within the time set out at project initiation.

2.9 Any samples, drawings, descriptive matter or advertising issued by the Agency, and any descriptions or illustrations contained in the Agency’s catalogues or brochures, 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

2.10  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 law, trade custom, practice or course of dealing.

3.1 Following a written acceptance of the quotation in a Return Brief by the Customer the Agency shall supply the Services to the Customer in accordance with the Specification in all material respects.

3.2  The Agency shall use all reasonable endeavours to meet any performance dates specified in the Return Brief, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.3  The Agency reserves the right to amend the Specification 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 Agency shall notify the Customer in any such event.

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

3.5 The Agency reserves the right to sub-contract the providing of any Services or any part thereof.

4.1  The Customer shall:

(a)  ensure that the terms of the Order, the Project Brief, the Return Brief and any information they provide, including in  the Specification, are complete and accurate;

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

(c)  provide the Agency, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Agency;

(d)  provide the Agency with such information and materials as the Agency may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

(e)  if applicable, prepare the Customer’s premises for the supply of the Services;

(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 any additional obligations as set out in the Specification ; and

(h) make all payments due to the Agency under this, or any other contract as and when they are due.

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

(a)  without limiting or affecting any other right or remedy available to it, the Agency 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 Agency’s performance of any of its obligations;

(b)  the Agency shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Agency’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 Agency on written demand for any costs or losses sustained or incurred by the Agency arising directly or indirectly from the Customer Default.

5.1 Any images supplied electronically will (where appropriate) be incorporated into designs without charge provided that they are of suitable quality. All images need to be supplied as EPS illustrator vectors for logos and Photoshop tiffs (300dpi min) for pictures. Any logos that need to be re-drawn will be charged extra at the Agency’s hourly rate from time to time. All supplied images requiring scanning or alterations to be charged at £20 per image. Images sourced from external image libraries may incur additional licence/royalty charges payable by the Customer.

5.2 Should the Customer supply text, artwork or images, the Agency is not obliged to edit, check or guarantee the correctness thereof in any way whatsoever, and the end product shall be made at the entire risk of the Customer.

5.3. The Agency shall be indemnified by the Customer in respect of any claims, costs and expenses arising out of any libellous matter or any infringement of copyright, patent design or any other proprietary or personal rights contained in any material supplied by the Customer. The indemnity shall extend to any amounts paid for professional fees for the defending of and/or settlement of any claim.

5.4 Origination and/or conceptual work and any copyright subsisting therein shall remain the property of the Agency unless otherwise agreed in writing with the Customer.

5.5 The Customer’s property and property supplied to the Agency on behalf of the Customer, while it is in the possession of the Agency or in transit to or from the Customer, will be deemed to be at Customer’s risk unless otherwise agreed and the Customer should insure accordingly.

5.6 The Agency may charge rent for storage of goods retained at Customer’s request, or items left with the Agency before receipt of the order or after notification to the Customer of completion of the work.

5.7 The Agency shall not be required to use, print, upload or hold any matter which in its opinion is or may be of an illegal or libellous nature or an infringement of the proprietary or other rights of a third party.

5.8  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 Agency.

5.9  The Agency grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence to copy the Deliverables (excluding materials provided by the Customer) but only insofar as is permitted under the terms of the Order. If not specified in the Order such right shall only extend to the use of the Deliverables on the Customer’s website, letterheads, buildings and stationery. In the event the Customer wants to edit the Deliverables or use them in any way which was not permitted in the terms of the Order an additional fee will be payable which shall be negotiated between the parties at the relevant time.

5.10  The Customer shall not sub-license, assign or otherwise transfer the rights granted in Clause 5.9.

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

6.1 The Agency shall be entitled to invoice the Customer in line with the agreed remuneration rates and times detailed in the Order. In the absence of such agreement the hourly rates in Clause 2.4 shall apply which shall be invoiced on a monthly basis in arrears based on the time spent on the Services.

6.2 Payment must be made no more than 30 days after date of invoice unless otherwise agreed in writing in advance.

6.3 When required to expedite project delivery ahead of the time needed for proper production of a given deadline, the Agency shall not be liable for defects occasioned thereby. Should such delivery require payment of overtime wages, delivery charges or other additional costs, all such extras will be for the Customer’s account.

6.4 Interest will be charged under the Late Payment Of Commercial Debts (Interest) Act 1998 amended by European Directive 2000/35/EC if the Agency is not paid according to these Conditions.

6.5. All work remains copyrighted to the Agency until settlement of relevant fee account irrespective of whether the Order contains any provision to transfer the copyright on completion of the Order.

6.6. All invoices are subject to UK VAT at the current rate, unless a valid exemption certificate is provided.

6.7 All payments must be in UK Pounds Sterling.

6.8 If the Agency incurs any costs as a result of the Customer’s neglect or default, the Agency may charge those costs to the Customer in addition to the agreed contract price.

6.9 The Customer shall pay for any preliminary work which is produced at his/her request, whether experimentally or otherwise..

6.10 The Agency may require payment in advance, or a deposit of at least 50% of the quote/estimate total detailed in the Order prior to instigating work on an Order, particularly but not limited to the following situations: new Customers; Customers with a poor payment history; large, lengthy or complex projects. Where a deposit is required, the balance payable under the terms of the Order shall be due upon completion of the work, unless otherwise agreed in writing in advance.

6.11 If a Customer’s payment is returned by the bank as unpaid for any reason, the Customer will be liable for a charge of £50 for each occurrence.

6.12 In the event that the Order is for Services lasting more than 12 months, the Agency reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.

6.13  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).

The following clauses only apply when the relevant product or service is being supplied by the Agency:

7.1 Design Proofs

7.1.1 Proofs, pull samples, specimens, sketches, photographs, links or any representation, whether partial or total, of the finished article in whatever form may be submitted to the Customer for approval.

7.1.2 Colour proofing is chargeable at £5 per A3 sheet and £2 per A4 sheet. Mono proofing is chargeable at £2 per A3 sheet and £1 per A4 sheet.

7.1.3 After approval the Customer shall have no claim against the Agency for errors in the products or designs commissioned based on an exemplar as approved by the Customer.

7.2 Printed Media

7.2.1 Printed Media Proofing

7.2.1.1 After initial design and layout, a mono proof will be submitted for author’s corrections to be identified and communicated to the Agency who will make a first round of amendments. On approval of a second mono proof the design will be classed as complete, where a final colour proof will be provided for full Customer sign off. Any additional author’s corrections requested after the second mono proof is submitted will be charged at the Agency’s normal hourly rate in Clause 2.4 (as amended) and £5 for each colour A3 proofing page printed.

7.2.2 Print

7.2.2.1 Standing matter and printers’ materials of any kind are effaced or disposed of immediately after the order is executed unless written arrangements are made for retention in advance.

7.2.2.2 The Agency shall not be required to work to tolerances closer than those applicable to the materials obtained by the Agency in the ordinary course of trade. No liability shall arise from variation in the standard, quality and performance of such materials.

7.2.2.3 Every endeavour will be made to deliver the correct quantity ordered, but estimates are conditional upon margins of 5% for work in one colour and 10% for other work being allowed for overs or shortage (4% and 8% respectively for quantities exceeding 50,000) the same to be charged or deducted.

7.2.3 Materials supplied by the Customer

7.2.3.1 The Agency will not be responsible for imperfect work caused by defects in or unsuitability of material and equipment supplied by the Customer. The Agency will not be responsible for Customer’s material wasted in course of production. Extra costs incurred through the use of defective materials or equipment supplied are for the Customer’s account.

7.2.3.2 The Agency may reject any paper, plates or other materials supplied or specified by the Customer which appear to them to be unsuitable. Additional cost incurred if materials are found to be unsuitable during production may be charged except that if the whole or any part of such additional cost could have been avoided but for unreasonable delay by the Agency in ascertaining the unsuitability of the materials then that amount shall not be charged to the Customer.

7.2.3.3 Quantities of materials supplied by the Customer shall be adequate to cover normal spoilage.

7.2.4 Machine Readable Codes

7.2.4.1 In the case of machine readable codes or symbols, the Agency shall print the same as specified or approved by the Customer in accordance with generally accepted standards and procedures.

7.2.4.2 The Customer shall be responsible for satisfying themselves that the code or symbol will read correctly on the equipment likely to be used by those for whom the code or symbol is intended.

7.2.4.3 The Customer shall indemnify the Agency against any claims by any party resulting from the code or symbol not reading or not reading correctly for any reason, except to the extent that such claim arises from any failure of the Agency to comply with any of the above which is not attributable to error falling within the tolerances generally accepted in the trade in relation to printing of this sort.

7.2.5 Delivery

7.2.5.1 Goods will be dispatched or must be collected by the Customer when ready and the Customer shall not refuse or delay delivery.

7.2.5.2 Advice of damage, delay or partial loss of goods in transit or of non-delivery must be given in writing to the Agency and the carrier within three clear days of delivery (or, in the case of non-delivery, within 28 days of despatch of the goods) and any claim in respect thereof must be made in writing to the Agency and the carrier within seven days of delivery (or, in the case of non-delivery, within 42 days of despatch). All other complaints and claims must be made in writing to the Agency within 28 days of delivery. The Agency shall not be liable in respect of any claim unless the aforementioned requirements have been complied with except in any particular case where the Customer proves that it was not possible to comply with the requirements and advice (where required) was given and the claim made as soon as reasonably possible.

7.2.5.3 Goods completed but not delivered shall thereupon forthwith become due and payable. Moreover after the expiration of 14 days notice the Agency may exercise a general lien on all the Customer’s goods and property in our hands and may dispose of such goods and property as they see fit and apply the proceeds towards such debts. The Agency may also elect to cancel further work and/or not produce any unmade balance of such contract and recover from the Customer any losses sustained by so doing, including up to the expiry of any Minimum Term.

7.2.5.4 The Agency shall not be liable for any loss to the Customer arising from delay in transit howsoever caused.

7.2.5.5. The risk in the goods passes to the Customer upon delivery (whether to the Customer or to a common carrier) but legal and beneficial ownership shall remain with the Agency until payment in full has been received (each delivery being considered as a whole). Until the date of payment the Customer, if so required by the Agency, shall store the goods in such a way that they are clearly identifiable as the property of the Agency.

7.3 Digital Media

7.3.1 Programming

7.3.1.1 The Agency can only program sites to be as secure as reasonably possible at the time of delivery and can not offer indemnity against future threats/developments.

7.3.1.2 Once the Agency has deemed a project to be complete, any amendments will be charged at the Agency’s standard billing structure of £100/hour for digital media programming.

7.3.1.3 The Agency develops websites for compatibility with the current version of Microsoft’s internet browser: not all previous versions or every browser. If further compatibility is required, the Agency must be advised at the outset.

7.3.2 Ownership

7.3.2.1 The ownership of the web pages and copyright therein shall remain with the Agency until payment in full has been received for all sums owing. Once payment has been received, ownership and copyright shall pass to the Customer for page text and graphics specific to the Customer.

7.3.2.2 Ownership of all code used in processing web pages shall remain with the Agency and it is expressly agreed that the use of such code in processing the web pages does not confer any passing of title from the Agency to the Customer.

7.3.3 Content

7.3.3.1. The Customer shall supply the copy for their web pages in clear and usable permanent or electronic form and shall be entirely responsible for the content of the web pages.

7.3.3.2 All images uploaded to websites by the Customer (via CMS, FTP or other) should be optimised (compressed file size). The Agency can provide advice on the best image editing software packages, but accepts no responsibility for the performance or compatibility of third-party software, or the results they produce.

7.3.3.3 When a test link is provided, it is the responsibility of the Customer to test the functionality, read and check all copy, as well as approve the design and images used before approval is given.

7.3.3.4 The Agency may provide legal disclaimers and privacy policies; but it is the responsibility of the Customer to confirm with their own legal advisers that these meet their individual requirements, as the Agency accepts no responsibility for their accuracy, relevance or currency.

8.1  Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 8 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 8, Applicable Laws means (for so long as and to the extent that they apply to the Agency) 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.

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

8.3 Without prejudice to the generality of Clause 8.1, 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 Agency for the duration and purposes of the Contract.

8.4 Without prejudice to the generality of Clause 8.1, the Agency shall, in relation to any personal data processed in connection with the performance by the Agency of its obligations under the Contract:

(a)  process that personal data only on the documented written instructions of the Customer unless the Agency is required by Applicable Laws to otherwise process that personal data. Where the Agency is relying on Applicable Laws as the basis for processing personal data, the Agency shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Agency from so notifying the Customer;

(b)  ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

(c)  ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and

(d)  not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:

(i)  the Customer or the Agency has provided appropriate safeguards in relation to the transfer;

(ii)  the data subject has enforceable rights and effective legal remedies;

(iii)  the Agency complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

(iv)  the Agency complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;

(e)  assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(f)  notify the Customer without undue delay on becoming aware of a personal data breach;

(g)  at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data; and

(h)  maintain complete and accurate records and information to demonstrate its compliance with this Clause 8 and immediately inform the Customer if, in the opinion of the Agency, an instruction infringes the Data Protection Legislation.

8.5 The Customer consents to the Agency appointing third party processors of personal data under the Contract. The Agency confirms that it has entered or (as the case may be) will enter with the third party processor into a written agreement incorporating terms which are substantially similar to those set out in this Clause 8 and in either case which the Agency confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and the Agency, the Agency shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this Clause 8.

9.1  Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 30 days written notice.

9.2  Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a)  the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;

(b)  the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(c)  the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(d)  the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

9.3  Without affecting any other right or remedy available to it, the Agency may terminate the Contract with immediate effect by giving written notice to the Customer if:

(a)  the Customer fails to pay any amount due under the Contract (or any other contract between the parties) on the due date for payment; or

(b)  there is a change of control of the Customer.

9.4  Without affecting any other right or remedy available to it, the Agency may suspend the supply of Services under the Contract or any other contract between the Customer and the Agency if the Customer fails to pay any amount due under the Contract (or any other contract between the parties) on the due date for payment, the Customer becomes subject to any of the events listed in Clause 9.2(b)to Clause 9.2(d), or the Agency reasonably believes that the Customer is about to become subject to any of them.

10.1 On termination of the Contract:

(a) the Customer shall immediately pay to the Agency all of the Agency’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Agency shall submit an invoice, which shall be payable by the Customer immediately on receipt. If the Order was for a minimum term the Agency shall be at liberty to invoice the Customer for the minimum term remaining under this Contract;

(b) the Customer shall return all of the Agency Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Agency may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

10.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

11.1 The Agency shall be under no liability if it shall be unable to carry out any provision of the contract for any reason beyond its control including (without limiting the foregoing) Act of God, legislation, war, fire, flood, drought, failure of power supply, lock-out, strike or other action taken by employees in contemplation or furtherance of a dispute or owing to any inability to procure materials required for the performance of the contract. During the continuance of such a contingency the Customer may by written notice to the Agency elect ‘to terminate the contract and pay for work done and materials used’, but subject thereto shall otherwise accept delivery when available.

12.1 The Customer warrants that the name, address and payment information provided when you placing the order with the Agency will be correct and the Customer agrees to notify the Agency of any changes in the name, address and/or payment details.

12.2 The Customer agrees that the Agency may disclose  the Customer’s name and address where any enquiries are made.

12.3 The Customer warrants that it possess the legal right and ability to enter into this Agreement and to use the Agency’s services in accordance with this Agreement.

13.1 The Customer shall indemnify the Agency and keep the Agency indemnified and hold the Agency harmless from all liabilities, actions, claims, proceedings, losses, expenses (including reasonable legal costs and expenses), costs and damages, howsoever suffered or incurred by the Agency in consequences of the Customer’s breach or non-observance of this Agreement, or arising out of claims based upon or relating to the Agency’s work for the Customer or any claim brought against the Agency by a third party resulting from the provision of any Services to you and your use of them.

13.2 The Agency will notify you promptly of any claim for which the Agency seeks specific indemnification at the currently supplied address. The Agency will afford you the opportunity to participate in the defence of such claim, provided that your participation will not be conducted in a manner prejudicial to the Agency’s interests, as reasonably determined by the Agency and/or its legal representatives.

14.1 All conditions, terms, representations and warranties relating to the Services supplied under this Agreement, whether imposed by statute or operation of law or otherwise, that are not expressly stated in these terms and conditions including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded, are subject always to sub clause 14.2

14.2 Nothing in these terms and conditions shall exclude the Agency’s liability for death or personal injury resulting from their negligence.

14.3 In any event, no claim against the Agency shall be brought unless the Customer has notified the Agency of the claim within one year of the issue arising.

14.4 In no event shall the Agency be liable to you by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, for any loss of business, contracts, anticipated savings or profits or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the Agency’s negligence or the negligence of its servants or agents or otherwise) which arise out of or in connection with the provision of any goods or services by the Agency.

14.5 The Agency warrants that its services will be provided using reasonable care and skill. Where the Agency supplies any goods supplied by a third party, the Agency does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign the benefit of any warranty, guarantee or indemnity given by the supplier of the goods to the Agency.

15.1 These conditions and all other express terms of the contract shall be governed and constructed in accordance with the laws of England and the parties hereby submit to the exclusive jurisdiction of the English courts.

15.2 The Agency shall not be liable or deemed to be in breach of contract by reason of any delay in performing, or failure to perform, any of its obligations if the delay or failure was due to any cause beyond its reasonable control.

15.3 All quotes/estimates, briefs and other Customer/Agency documents are commercially confidential and may not be disclosed to third parties without prior written agreement.

15.4 These terms and conditions, together with any documents expressly referred to in them, contain the entire Agreement between the Agency and the Customer relating to the subject matter covered and supersede any previous agreements, arrangements, undertakings, proposals or contemporaneous communications, written or oral: between the Agency and the Customer in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions. In agreeing to these terms and conditions, the Customer confirms that they have not relied on any representation other than those expressly stated in these terms and conditions and the Customer agrees that they shall have no remedy in respect of any misrepresentation which has not been expressly made in this Agreement.

15.5 Any notice to be given by either party to the other may be sent by either email or post to the address of the other party as appearing in this Agreement or ancillary application forms or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved, be deemed to be received on the day it was sent, or if sent by post shall be deemed to be served two days following the date of posting.

15.6 Headings, numbering and summaries are included in this Agreement for convenience only and shall not affect the construction or interpretation of this Agreement.

15.7 The Customer acknowledges that no joint venture, partnership, employment, or agency relationship exists between the Customer and the Agency as a result of the Customer’s use of these services. The Customer agrees not to hold itself out as a representative, agent or employee of the Agency. The Customer agrees that the Agency will not be liable by reason of any representation, act or omission to act by the Customer.

15.8 The Agency reserves the right to revise, alter, modify or amend these terms and conditions, and any of their other policies and agreements at any time and in any manner without prior notification. Notice of any revision, amendment, or modification will be posted in accordance with the Conditions.

15.9 If any of the provisions of the Conditions are judged to be illegal or unenforceable, the remainder shall continue in full force and the effect of the remainder of them will be not be deemed to be prejudiced.

15.10 This Agreement takes effect on the date on which you order our services. Acceptance of these terms is an absolute condition of the Customer requesting work. An Order constitutes acceptance of all our Terms and Conditions.

15.11 The Customer shall not assign this Agreement or any benefits or interests arising under this Agreement without the Agency’s prior written permission.

In the event that a Service Level Agreement is in use the terms of this will be detailed in the Order.

2.1 Programming

2.1.1 The Agency can only program sites to be as secure as reasonably possible at the time of delivery and can not offer indemnity against future threats/developments.

2.1.2. Once the Agency has deemed a project to be complete, any amendments will be charged at the Agency’s standard billing structure of £100/hour.

2.1.3 The Agency develops websites for compatibility with the current version of Microsoft Internet Explorer: not all previous versions or every browser. If further compatibility is required, the Agency must be advised at the outset.

2.2 Ownership

2.2.1 The ownership of the web pages and copyright therein shall remain with the Agency until payment in full has been received for all sums owing. Once payment has been received, ownership and copyright shall pass to the Client for page text and graphics specific to the Client.

2.2.2 Ownership of all code used in processing web pages shall remain with the Agency and it is expressly agreed that the use of such code in processing the web pages does not confer any passing of title from the Agency to the Client.

2.3 Content

2.3.1 The Client shall supply the copy for your web pages in clear and usable permanent or electronic form and shall be entirely responsible for the content of the web pages.

2.3.2 All images uploaded to websites by the Client (via CMS, FTP or other) should be optimised (compressed file size). The Agency can provide advice on the best image editing software packages, but accepts no responsibility for the performance or compatibility of third-party software, or the results they produce.

2.3.3 When a test link is provided, it is the responsibility of the Client to test the functionality, read and check all copy, as well as approve the design and images used before approval is given.

2.3.4 The Agency can provide legal disclaimers and privacy policies; but it is the responsibility of the Client to confirm with their own legal advisers that these meet their individual requirements, as The Agency accepts no responsibility for their accuracy, relevance or currency.

The Agency offers website hosting and database hosting services through the use of third party providers and is subject to requirements set out in these terms and conditions and any other relevant terms and conditions, policies and notices which may be applicable to the supply of hosting services.

Below is a summary of the main points covered in these terms:

• Whilst we and our suppliers will always endeavour to give you the best possible level of service, we cannot guarantee 100% availability of service.
• The Agency and our suppliers accept no responsibility for any losses caused through a loss of service.
• Your service will be removed if you fail to pay in time or misuse the service.
• The Agency will not be liable for any costs to restore your service once it has been removed. Specifically, any websites with databases will require reprogramming once they have been removed from their original server.
• Any work undertaken by the Agency at the request of the Client will be charged at our standard rate of £50 per hour, including investigations regarding problems or loss of service that are not due to the Agency or our suppliers. The Agency should only be contacted after you and your IT professional/advisor have established that any problems are not due to you or your systems.

3.1 Website & Email Content & Use

3.1.1 We make no representation and give no warranty as to the accuracy or quality of information received by any person via the Server and we shall have no liability for any loss or damage to any data stored on the Server. You warrant the accuracy, truthfulness and reliability of any information (including, where applicable, statements of opinion or advice) which you place or allow to be placed on your web pages. You warrant that you are authorised to promote and/or provide any information which you promote and/or provide on your web pages (for example if you are providing financial information, that you hold any necessary authorisation under all relevant legislation including the Financial Services Acts).

3.1.2 You represent, undertake and warrant to us that you will use the website allocated to you only for lawful purposes. In particular, you represent, warrant and undertake to us that:

3.1.2.1. You will not use the Server in any manner which infringes any law or regulation or which infringes the rights of any third party, nor will you authorise or permit any other person to do so.

3.1.2.2 You will not host, post, publish, disseminate, link to or transmit:

3.1.2.2.1 Any material or information which is unlawful, infringing, threatening, abusive, malicious, defamatory, obscene, indecent, blasphemous, profane or otherwise objectionable in any way.

3.1.2.2.2 Any material containing a virus or other hostile computer program.

3.1.2.2.3 Any material or information which constitutes, or encourages the commission of a criminal offence, or which threatens, harasses, stalks, abuses, disrupts or violates the legal rights (including rights of privacy and publicity) of others, or which infringes any patent, trade mark, design right, copyright or any other intellectual property right or similar rights of any person which may subsist under the laws of any jurisdiction.

3.1.2.3 You will not send bulk email, whether opt-in or otherwise, from our network. Nor will you promote a site hosted on our suppliers network using bulk email.

3.1.2.4 You will not employ programs which consume excessive system resources, including but not limited to processor cycles and memory.

3.1.2.5 You shall observe the procedures which we may from time to time prescribe and you shall make no use of the Server which is detrimental to other customers.

3.1.2.6 You shall procure that all mail is sent in accordance with applicable legislation (including data protection legislation) and in a secure manner.

3.1.2.7 In the case of an individual User, you warrant that you are at least 16 years of age and if the User is a company, you warrant that the Server will not be used by anyone under the age of 16 years.

3.1.2.8 You are entirely responsible for any civil or criminal liability that is incurred as a result of any use of your web pages. If you post or allow to be posted a defamatory or libellous message, it is you that will be deemed to have published it and you shall be liable for the consequences of it.

3.1.3 We and our suppliers reserve the right to remove any material which they deem inappropriate from your web site without notice (specifically, but not restricted to, Warez and illegal MP3 content).

3.1.4 If you advertise or offer to sell goods or services via your web pages, you undertake to provide goods in conformity with any description and warranties made. You agree to comply with all relevant legislation including Advertising and Broadcast regulations, Consumer Credit Acts and Trades Descriptions Acts. If you are advertising goods in the course of a trade or business this must clearly be so stated.

3.2 Charges

3.2.1 All charges payable by you for the Services shall be in accordance with the scale of charges and rates published from time to time by us and shall be due and payable in advance of their service provision without any set-off or other deduction. We reserve the right to change pricing at any time, although all pricing is guaranteed for the current subscription period.

3.2.2 Payment is due each anniversary month, quarter or year following the date the Services were established until closure notice is given