Terms & Conditions
1. Interpretation: Definitions. In these Conditions, the following definitions apply: Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business; Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 6; Commencement Date: has the meaning set out in clause 3. Conditions: these terms and conditions as amended from time to time in accordance with clause 14; Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions; Customer: the person or firm who purchases Services from the Supplier; Deliverables: graphic/web-design work for the Customer; Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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; Order: the Customer’s order for Services; Services: the services, including the Deliverables, supplied by the Supplier to the Customer; Specification: the description or specification of the Services provided by the Customer to the Supplier; Supplier: Michael Ritson trading as Ritson Creative of 54 Frederick Street North, Durham, DH1 3QB. Supplier Materials: has the meaning set out in clause 12.
2. Construction: In these Conditions, the following rules apply: a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); a reference to a party includes its personal representatives, successors or permitted assigns; a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted; any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and a reference to writing or written includes faxes and e-mails.
3. Basis of contract: (i) The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions. The Order shall only be deemed to be accepted when the Supplier indicates acceptance of the Order (whether by his words or conduct) at which point and on which date the Contract shall come into existence (Commencement Date); (ii) the Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract; (iii) any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s portfolio, are issued or published for the sole purpose of giving an approximate idea of the Services the Supplier provides. They shall not form part of the Contract or have any contractual force; (iv) 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 trade, custom, practice or course of dealing; and (v) any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 10 Business Days from its date of issue.
4. Supply of Services: (i) The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects; (ii) the Supplier shall use all reasonable endeavours to meet any performance dates specified by the Customer but any such dates shall be estimates only and time shall not be of the essence for performance of the Services; (iii) the Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services; (iv) the Supplier warrants to the Customer that the Services will be provided using reasonable care and skill but does not guarantee that the Deliverables will meet the Customer’s approval, appreciation of design work being highly subjective .
5. Customer’s obligations: The Customer shall (i) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate; (ii) co-operate with the Supplier in all matters relating to the Services; (iii) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services ensure that such information is accurate in all material respects; (iv) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start; and (v) carefully check the Customer’s work prior to publishing it.
6. If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default) the Supplier shall without limiting its other rights or remedies: (i) have the right to suspend performance of the Services until the Customer remedies the Customer Default; and (ii) rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations. In all cases the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default. However, in all cases the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations under this Contract.
7. Charges and payment: (i) The Charges for the Services shall be on a time and materials basis including time spent being briefed and liaising with the Supplier generally; (ii) the Charges shall be calculated in accordance with the Supplier’s standard daily fee rates as set from time to time. Any estimate the Supplier provides will be based upon the Customer’s instructions and may need to be amended as and when circumstances change. The Customer’s costs may well be higher than the level of any estimate and the Supplier may subsequently update any estimate provided; (iii) the Supplier’s standard daily fee rates for each individual are calculated on the basis of an eight-hour day on a normal Business Day though the Supplier shall be entitled to charge an overtime rate of 25% of the standard daily fee rate on a pro-rata basis for each part day or for any time worked outside these hours (whether expressly instructed to do so or where deemed necessary by the Supplier); and (iv) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials; (v) the Supplier reserves the right to increase its standard daily fee rates, provided that such charges cannot be increased more than once in any 12 month period and the Supplier will give the Customer written notice of any such increase one month before the proposed date of the increase; (vi) if such increase is not acceptable to the Customer, it shall notify the Supplier in writing within one week of the date of the Supplier’s notice and the Supplier shall have the right without limiting its other rights or remedies to terminate the Contract by giving one week’s written notice to the Customer; (vii) the Supplier shall invoice the Customer monthly in arrears; (viii) the Customer shall pay each invoice submitted by the Supplier within 28 days of the date of the invoice and in full and in cleared funds to a bank account nominated in writing by the Supplier and time for payment shall be of the essence of the Contract; (ix) all amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax and the Customer shall, on receipt of a valid VAT invoice from the Supplier pay to the Supplier such additional amounts in respect of VAT as are chargeable; (x) if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment , then the Customer shall pay interest on the overdue amount at the rate of 4% per cent per annum above Barclays Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment; (xi) the Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law); (xii) the Supplier may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
8. Intellectual property rights: All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier and licensed to the Customer for a term of 99 years. The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on the Customer obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
9. Confidentiality: A party (receiving party) 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 to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause shall survive termination of the Contract.
10. Limitation of liability: The Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract and the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Contract value. Nothing in these Conditions shall limit or exclude the Supplier’s liability for: (i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; (ii) fraud or fraudulent misrepresentation; or (iii) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession). The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract. This clause shall survive termination of the Contract.
11. Termination: Without limiting its other rights or remedies, either party may terminate the Contract by giving the other party one months’ written notice. Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if: (i) 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 seven days of that party being notified in writing to do so; (ii) the other party is unable to pay its debts as they fall due; (iii) in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or (iv) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation. Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer without cause.
12. Consequences of termination: On termination of the Contract for any reason: (i) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt; and (ii) the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier 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; (iii) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and (iv) clauses which expressly or by implication survive termination shall continue in full force and effect.
13. Force majeure: 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 or medical condition which in the sole opinion of the Supplier renders the Supplier unable to work. The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event. If the Force Majeure Event prevents the Supplier from providing any of the Services for more than four 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 Customer.
14. General: Notices: Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail. Severance: If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision. Waiver. A waiver of any right under the Contract or law 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 provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. No partnership or agency: Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way. Third parties: A person who is not a party to the Contract shall not have any rights to enforce its terms. Variation: Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Supplier. Governing law: 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 the law of England and Wales. Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).