Terms and conditions
References to a clause are to clauses or sub-clauses in these terms and conditions. The headings in these terms and conditions are for ease of reference only and shall not affect their interpretation or construction.
In these terms and conditions unless the context otherwise requires:-
1.1 ‘Buyer’ means any person employing the Services.
1.2 ‘Completion Date’ the date at which the Product is to be completed or in the case of a website the date on which the site will go live according to the Specification.
1.3 ‘Confidential Information’ includes without limitation lists, proposals, technical and non-technical information, briefs, specifications, visuals, proofs, artwork, design, models, maquettes, sketches, drawings, know-how and all other intellectual property of whatsoever nature whether tangible or intangible.
1.4 ‘Development Stage’ means any date within the Specification whereby a particular part of the Product will be completed.
1.5 ‘Facilities’ means but is not limited to access to the internet and the Buyer’s computer network and telecommunications systems and shall include not only access to such resources but also use of them and access and the use of areas or parts of the Buyer’s premises to the extent required by WithBrand Limited in order to complete the Product.
1.6 ‘Host’ means Fasthosts Internet Limited, SiteGround.com Inc or Dogsbody Technology Limited.
1.7 ‘Interest’ means interest at the rate applicable pursuant to the Late Payment of Commercial Debt (Interest) Act 1998.
1.8 ‘Price’ means the price for the Product as set out in the Specification.
1.9 ‘Product’ means the product developed in accordance with the Specification by WithBrand Limited.
1.10 ‘Services’ means the services provided by WithBrand Limited for design of website and/ or graphic design services (as applicable), agreed between WithBrand Limited and the Buyer more specifically defined and set out in the Specification.
1.11 ‘Specification’ means the detailed job specification attached herewith or, the written proposal provided by WithBrand Limited.
1.12 ‘Stock Images’ means any images in any form provided by WithBrand Limited and used in undertaking the Services in line with the Specification.
1.13 ‘Third Party Software’ means all software owned or licensed to the Buyer from a third party owner (whether or not supplied by WithBrand Limited) and which comprises the Product or part of the Product.
1.14 ‘User Generated Content’ means any items added to a website by a member of the public or person able to access the website via the internet.
2. General terms of business
2.1 Acceptance of Fee - Fee quotations are firm for three months of the date of the initial proposal, and are exclusive of expenses (unless otherwise agreed).
2.2 Confidentiality - WithBrand Limited will not misuse any confidential information that may be made available to our knowledge.
2.3 Exclusivity - WithBrand Limited does not work on an exclusive basis unless this has been specifically negotiated and supported by a retainer fee.
2.4 Modifications - Extra work and expenses caused by delay in receiving clients instruction or by changes in those instructions shall be additionally charged on a time basis. WithBrand Limited will not be held responsible for any changes made by clients to our specifications.
2.5 Copyright - In accordance with the Copyright Designs and Patents Act 1988, the copyright in all designs shall remain the property of WithBrand Limited unless otherwise agreed. On completion of the work and on the full payment of fees due under this contract, the work can be reproduced by the client for the specific application and territories described in this contract. Copyright for all brought-in items, such as illustrations and photography will be subject to separate negotiations. Original artwork, illustrations and photography remain the property of the originator.
2.6 Suppliers - In the recommendation of manufactures and suppliers responsibility cannot be accepted for any failure or consequent of production loses.
2.7 Publicity - The clients agrees to give WithBrand Limited credit, where appropriate, in all initial press handouts and publicity material and agrees to an announcement of the appointment of WithBrand Limited as Design Consultants.
2.8 Photography - On completion of the project, it is the normal practice of WithBrand Limited to commission photographs for record purposes. This is of benefit to both the client and ourselves and we suggest that we share the costs.
3. Product Development
3.1 WithBrand Limited shall produce the Product in accordance with these terms and conditions in consideration for the Buyer paying the Price to WithBrand Limited.
3.2 If additional features or materials are ordered by the Buyer that are not listed in the Specification or changes or amendments are made to the Specification, WithBrand Limited will confirm the fee for providing the additional features or materials to the Buyer in writing and the supply of the additional features will thereafter be governed by these terms and conditions.
3.3 The provision of the Services and delivery of the Product will be provided for by the Specification. During the preparation of the Product, to ensure that each Development Stage of the Specification is met the Buyer will:
- co-operate with WithBrand Limited as WithBrand Limited reasonably requires;
- provide the information and documentation that WithBrand Limited reasonably requires;
- make available to WithBrand Limited such Facilities as WithBrand Limited reasonably requires;
- ensure that the Buyer’s staff and agents co-operate with and assist WithBrand Limited;
- carry out any preparatory site works in accordance with the Specification and/ or as required by WithBrand Limited.
3.4 If the Buyer does not notify WithBrand Limited of:
- any matters concerning the quality or content of the Product prior to or on the date of a Development Stage; or
- any matters concerning the quality or content of the Product prior to or on the Completion Date;
then the Buyer will be deemed to have wholly approved the Product up to and including that stage of development.
3.5 In the case of the Product being a website WithBrand Limited will put the website on the internet for public viewing on the Completion Date (notwithstanding clause 3.4(b)).
3.6 If the Buyer does not provide the Facilities that WithBrand Limited reasonably requires (and within the time period) to provide and complete the Product, then any additional costs and expenses which are reasonably incurred by WithBrand Limited will be payable by the Buyer.
4. Materials provided for the content of the Product
4.1 If the Buyer provides materials to WithBrand Limited by any means WithBrand Limited shall not be responsible for checking:
- the accuracy of the content, including but not limited to checking whether the content is spelt correctly, is grammatically correct, or formatted in accordance with any specification, layout or design;
- (where the materials consist of artwork or layouts) whether the artwork or layouts are positioned correctly on a page or in accordance with any instructions as to how the artwork or layout is to be reproduced or printed; or
- where materials are supplied as a file ready for reproduction within a website or otherwise any of the contents, layout or commands, markings, formatting or other matters.
4.2 The Buyer shall keep one or more copies of the content sent as backup and if requested by WithBrand Limited shall make the content available for WithBrand Limited to use in the preparation of the Product.
4.3 Where WithBrand Limited has provided Stock Images in developing the Product the Buyer is not entitled to reproduce the images in any form unless WithBrand Limited has given its written consent to the Buyer to do so.
5. Price and Payment
5.1 The Buyer shall pay the Price (or if payment by instalments is agreed on any part thereof) without any deduction or set off to WithBrand Limited within 30 days. Time for payment shall be of the essence.
5.2 Interest on an overdue invoice shall accrue from the date when payment becomes due until the date payment is received.
5.3 The Price is exclusive of VAT unless otherwise stated, which will be added at the prevailing rate along with any costs of delivery which will be added as appropriate.
6. The Services
6.1 WithBrand Limited warrants that it will use reasonable care and skill in providing the Product and will use all reasonable efforts to provide the Product within the timescales detailed in the Specification.
6.2 WithBrand Limited provides no warranty that any result or objective can or will be achieved or attained by the production of the Product on or after the Completion Date whether stated in these terms and conditions or elsewhere.
6.3 Where the Product or any part of the Specification or the Product involves the design or maintenance of a website for the Buyer:
- WithBrand Limited will provide day to day support for the website (exclusive of bank holidays and weekends;
- Where the website becomes unavailable for public viewing or there is a fault with the website due to no fault of the Buyer, WithBrand Limited will use reasonable endeavours to rectify the fault within a reasonable time period according to the nature and scale of the fault;
- WithBrand Limited accepts no responsibility for reviewing, reporting on and administering any User Generated Content uploaded onto the website and the Buyer accepts and agrees that this is the Buyer’s sole responsibility.
7. Illegal material
7.1 If in WithBrand Limited’s reasonable opinion, WithBrand Limited considers that any materials provided to it by or on behalf of the Buyer:
- are defamatory;
- contain, express or indicate illegal racist or otherwise discriminatory opinions;
- contain any designs, images, graphics or photographs which are illegally racist or otherwise discriminatory;
- are illegal or contain illegal content;
- infringe or breach the intellectual property rights of a third party; or
- are used outside the provisions of any licence that the Buyer or WithBrand Limited may have to use those materials,
then WithBrand Limited shall not be required to provide the Product in relation to such materials or to use the said materials.
7.2 The right for WithBrand Limited not to provide the Product shall also apply where producing the Specification shall involve the creation, design, layout, production or reproduction of copy, designs, artwork or images (in any format) which fall into one of the categories set out in clauses 7.1 (a) to 7.1 (f).
7.3 Without prejudice to clause 7.1 or 7.2 WithBrand Limited is under no obligation to check the contents of any materials provided by the Buyer and the Buyer confirms that it has checked the legality of all materials prior to providing them to WithBrand Limited.
8. The Buyer’s obligations
8.1 The Buyer will appoint a member of its staff to act as the principal point of contact between the parties whilst WithBrand Limited are providing Services in line with the Specification.
8.2 The Buyer will keep confidential all Confidential Information supplied to it by WithBrand Limited in the course of WithBrand Limited developing the Product or after the Completion Date including any such information which belongs to a third party.
9.1 Except in respect of liability for death or personal injury caused by WithBrand Limited’s negligence:
- all warranties conditions representations or terms relating to fitness for purpose or the quality of the Product whether express or implied by statute or common law or otherwise are excluded to the fullest extent permitted by law,
- the liability of WithBrand Limited under or in connection with these terms and conditions whether arising in contract, tort, negligence, breach of statutory duty or otherwise shall not exceed the price paid by the Buyer to WithBrand Limited under these terms and conditions.
9.2 WithBrand Limited shall not be liable to the Buyer in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by the Buyer of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill.
9.3 The Buyer shall indemnify and hold WithBrand Limited harmless from and against all Claims arising from loss, damage, liability, injury to the Buyer, its employees and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any information supplied to the Buyer by WithBrand Limited, its employees or consultants, or supplied to WithBrand Limited by the Buyer within or without the scope of these terms and conditions.
9.4 The Buyer acknowledges that, in entering into these terms and conditions, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in these terms and conditions, and any conditions, warranties or other terms implied by statute or common law are excluded from these terms and conditions to the fullest extent permitted by law. Nothing in these terms and conditions excludes liability for fraud.
10. Proprietary rights in software product
10.1 No title or ownership of software products or any Third Party Software licensed to the Buyer is transferred to the Buyer under any circumstances. The Buyer hereby acknowledges that all proprietary rights in any Third Party Software supplied to it by WithBrand Limited, including (but not limited to) any title or ownership rights, patent rights, copyrights and trade secret rights, shall at all times and for all purposes vest and remain vested in the Third-Party Software owner.
10.2 The Buyer hereby acknowledges that it is its sole responsibility to comply with any terms and conditions of licence attaching to Third Party Software supplied and delivered by WithBrand Limited (including if so required the execution and return of a Third Party Software licence document). The Buyer is hereby notified that failure to comply with such terms and conditions could result in the Buyer being refused a software licence or having the same revoked by the proprietary owner. The Buyer further agrees to indemnify WithBrand Limited in respect of any loss, liability, costs, charges or expenses suffered or incurred by WithBrand Limited, including (but without limitation) as a result of any proceedings instituted by a Third Party Software owner, as a result of any breach by the Buyer of any such software licence or the terms of this Clause 9.
11.1 Where the Product is, or part of the Product is for development of a website and the Buyer wishes to transfer the website from the Host to a new website host, the Buyer accepts that:
- the content management system (“CMS”) for the website will not be transferable to the new website host and WithBrand Limited may at its sole discretion charge the Buyer on a time spent basis of £80.00 per hour for removing the CMS,
- the Buyer will lose the CMS for the website,
- WithBrand Limited will only provide support services for the Buyer setting up the website with a different website host on a hourly fee basis of £80.00 per hour and will not maintain the daily maintenance of the website,
- WithBrand Limited accepts no liability for the Buyer transferring the website to a new website host.
11.2 Should the Buyer transfer the website from the Host to a new website host WithBrand Limited will after removing the CMS on request from the Buyer provide the website files to the Buyer at no additional charge.
12. Domain Names
12.1 Where the Buyer has made any request to:
- retain control of, or
- transfer control from WithBrand Limited of its own domain name, the Buyer accepts it is responsible for paying all fees relating to the domain name and WithBrand Limited accepts no responsibility for non-payment of fees, any third party charges or any times at which the website is not accessible on the internet due to problems with the domain name.
13.1 These terms and conditions may (without prejudice to any other rights or remedies of the parties) be terminated forthwith by notice in writing by WithBrand Limited if:
- the Buyer fails to pay the Price when it falls due or commits any other breach of contract or
- any distress or execution shall be levied upon any of the Buyer’s goods, or
- the Buyer offers to make an arrangement with its creditors, or
- any bankruptcy petition is presented against the Buyer, or
- the Buyer is unable to pay its debts as they fall due, or
- being a limited company any resolution or petition to wind up the Buyer shall be passed or presented or if a receiver administrator administrative manager or manager shall be appointed over the whole or any part of the Buyer’s business or assets.
13.2 In the event of the termination of this Contract :-
- the Price and all sums due to WithBrand Limited hereunder shall become payable in full immediately,
- the Buyer shall return all original artwork design or other work to WithBrand Limited,
- any licence granted under these terms and conditions terminates with immediate effect.
14.1 No forbearance, delay or indulgence by WithBrand Limited in enforcing its rights shall prejudice or restrict the rights of WithBrand Limited and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or any later breach.
14.2 The rights of the Buyer under these terms and conditions shall not be assignable without the prior written consent of WithBrand Limited.
14.3 The invalidity or unenforceability of any provision in these terms and conditions shall not affect the remainder of these terms and conditions which shall continue to have full force and effect in accordance with their terms.
14.4 Neither party shall be liable to the other for any delay in failure to perform its obligations under any contract (other than a payment of money) where such delay or failure results from force majeure, act of God, fire, explosion, accident, industrial dispute or any cause beyond its reasonable control.
14.5 Any notices given by either party to the other for the purposes of these terms and conditions may be sent as follows:
14.6 Where a notice is sent in writing it may be delivered personally or by recorded delivery or registered post and will be deemed to have been duly given (whether or not in fact received) either on delivery (if delivered personally) or 2 working days after the date of posting (if sent by post in the manner prescribed above) if delivered or sent to the registered office of the intended recipient (if a company) or to the principal business address at which the sender is accustomed to deal with the intended recipient in the normal course of trading or to any other address notified by the intended recipient to the sender in writing for the purpose of receiving documents or notices.
14.7 If sent by email it will be deemed to be delivered 1 working day after the date of sending where:
- the email is sent by WithBrand Limited to the Buyer the email is sent to the email address the Buyer provides,
14.8 Notwithstanding that WithBrand Limited will save all data used in compiling the website on a daily basis, the Buyer is responsible for storing copies of any information or content supplied to the Buyer in connection with the website before or after the Completion Date.
14.9 These terms and conditions and any contract to which they apply shall be governed by and construed in accordance with the laws of England and Wales and (for the benefit of WithBrand Limited) the Buyer irrevocably agrees to submit to the non-exclusive jurisdiction of the English courts in relation to any dispute arising out of or in connection with these terms and conditions or any such contract.
14.10 Nothing in these terms and conditions shall create any partnership joint venture or relationship of principal and agent, or employer and employee between the parties.
14.11 WithBrand Limited may subcontract or delegate all or part of the performance of the Services.
14.12 Any dispute arising out of these terms and conditions is to be referred to a single arbitrator in accordance with the Arbitration Act 1996 agreed between WithBrand Limited and the Buyer, or (in the absence of an agreement) nominated on the application of either party by the President for the time being of the Law Society.
14.13 In the absence of a determination by the arbitrator as to his fees, they shall be borne equally by WithBrand Limited and the Buyer.
14.14 If the arbitrator is ready to make his award, but is unwilling to do so due to the Buyer’s failure to pay its share of the costs in connection with the award, WithBrand Limited may serve on the Buyer a notice requiring the Buyer to pay such costs within 14 days, and if the Buyer fails to comply with such notice WithBrand Limited may pay to the arbitrator the Buyer’s costs, and any amount so paid will be a debt due forthwith from the Buyer to WithBrand Limited.