1 . INTERPRETATION
1.1 In these Conditions:
“Client” means the person who accepts a quotation of the Company for the provision of Services or whose order for Services is accepted by the Company;
means any and all specifications drawings photographs text logos designs narrative or any other matter supplied by the Client for the purpose of the provision of the Services;
“Company” means Gilroy Corporate Communications Ltd (registered number 139982);
“Conditions” means the standard terms and conditions of sale set out herein and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Client and the Company;
“Contract” means the contract for the provision of Services;
“Materials” means any material or documentation forming part of a Contract;
“Services” means services which the Company is to provide in accordance with the Contract;
“Website” means the pages of information on the Internet accessible by means of a URL produced by the Company in accordance with the Contract;
“Written or in writing”
means any form of communication which can be produced as hard copy. This includes a verbal instruction to the Company which is later confirmed in writing by either party.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.4 Unless otherwise specified, these terms and conditions apply to all Contracts and Services agreed between the Client and the Company. Where the Clients terms and conditions take precedence, these terms and conditions shall still apply where there are no conflicting terms.
2. BASIS OF THE SALE
2.1 Services shall be provided by the Company in accordance with any written quotation of the Company which is accepted by the Client or any written order of the Client which is accepted by the Company subject in either case to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted or any such order is made or purported to be made by the Client.
2.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Client and the Company.
2.3 The Company’s employees or agents are not authorised to make any representations concerning the Services unless confirmed by the Company in writing. In entering into the Contract the Client acknowledges that it does not rely on and waives any claim for breach of all such representations which are not so confirmed.
2.4 Any typographical, clerical or other error or omission in any sales literature quotation price list acceptance of offer invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.5 The copyright for all purposes in all artwork base design of the Services (copy, storyboards, site plans, etc) and all other work created by the Company for the Client (excluding the Client Specification) shall be and shall remain vested in the Company unless otherwise agreed.
2.6 Services do not include a connection to the Internet and the Company shall not be responsible or liable in any way for any service facility activity or fault provided by any third party or originating in any third party computer or other communications network.
2.7 The Company does not purport to offer as part of the Services any advisory or compliance checks in relation to any local national or international laws regulations or rules relating to the sale of the Client’s products or services via the Internet. Such matters will remain the sole responsibility of the Client.
3. ORDERS AND SPECIFICATIONS
3.1 The Client shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Client and for giving the Company timely information needed to enable the Company to perform the Contract in accordance with its terms.
3.2 The quantity quality and description of and any specification for the Services shall be those set out in the Company’s quotation (if accepted by the Client) or the Client’s order (if accepted by the Company).
3.3 The Client warrants to the Company:
3.3.1 that it either owns free of all encumbrances the legal title to any Client Specification or has all necessary licences and consents from the owner to use the same and to provide the Client Specification to the Company for the purposes of the Services; and
3.3.2 that any statement about goods or services in a Client Specification is legal honest and truthful.
3.4 The Client shall if so requested supply the Company with objective factual evidence supporting any product claim and (b) shall inform the Company if any claim or trade description is misleading.
3.5 A Client Specification is supplied to the Company at the Client’s risk and shall remain at the Client’s risk whilst in the Company’s possession. The Company shall not be liable for any loss or damage to the Client Specification unless such damage arises as a direct result of the negligence of the Company or its officers or employees.
3.6 Without prejudice to the Company’s remedy under clause 3.6 the Company may refuse to carry out the Services if in its opinion the Client Specification is immoral illegal obscene misleading inaccurate or defamatory and the Company shall not be liable to the Client for breach in such instances.
3.7 If the Services are to be produced by the Company wholly or partly in accordance with a Client Specification the Client shall indemnify the Company against all loss damages costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any patent copyright design trade mark or other industrial or intellectual property rights of any other person which results from the Company’s use of the Client’s specification.
3.8 The Company reserves the right to make any changes in specification which may be required to ensure the Services conform with any applicable safety or other statutory requirements.
3.9 No order which has been accepted by the Company may be cancelled by the Client except with the agreement in writing of the Company and on terms that the Client shall indemnify the Company in full against all loss (including loss of profit) costs (including the cost of all labour and material used) damages charges and expenses incurred by the Company as a result of cancellation.
4 . PRICE
4.1 The price of Services shall be the Company’s quoted price. All prices quoted are valid for 30 days only or until earlier acceptance by the Client after which time they may be altered by the Company without giving notice to the Client.
4.2 The Company reserves the right by giving notice to the Client at any time before delivery to increase the price of Services to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as without limitation any foreign exchange fluctuation currency regulation alteration of duties significant increase in the costs of labour material or other costs of manufacture) any change in delivery dates quantities or specifications which is requested by the Client or any delay caused by any instructions of the Client or failure of the Client to give the Company adequate information or instructions.
4.3 The price is exclusive of any applicable value added tax which the Client shall be additionally liable to pay to the Company.
5 . TERMS OF PAYMENT
5.1 The Terms for all Services are within 30 days of invoice and all services are invoiced as 50% in advance and 50% on completion, unless otherwise agreed, with the exception of media and third party supplies which are subject to 100% invoice and payment in advance.
The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.2 The Company will not be liable for the consequences of any delay caused by the non-payment of any invoice for the cost of Materials or Services required for the fulfilment of the Contract.
5.3 If the Client fails to make any payment on the due date then without prejudice to any other right or remedy available to the Company the Company shall be entitled to:
5.2.1 cancel the contract or suspend any further deliveries of Materials or Services to the Client;
5.2.2 appropriate any payment made by the Client to any contract between the Client and the Company; and
5.2.3 charge the Client interest (both before and after any judgement) on the amount unpaid or any part thereof at the rate of four per cent per month above Barclays Bank base rate until payment in full is made.
5.2.4 make any online websites, assets or services supplied as part of the Contract unavailable
5.4 If the Services are put on hold by the Client, the Client does not have the right to any form of refund unless agreed in writing by the Company.
5.5 If the Services are put on hold by the Client and remain on hold for a period greater than six months, the Company will state the Services and Contract as complete to the full value of the payments made up to that point.
6.1 Subject to clause 6.2 delivery shall be made to the Client at such place and in such manner as is agreed by the Company.
6.2 Delivery of a Website or online assets shall be either when it has been up-loaded to the specific server or media channel selected by the Client at its own risk or it is supplied as physical media.
6.3 Any dates quoted for delivery are approximate only and the Company shall not be liable for any delay in delivery howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Company in writing.
6.4 If the Client fails to take delivery of the Services or any part thereof or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Client’s reasonable control or by reason of the Company’s fault) then without prejudice to any other right or remedy available to the Company the Company may:
6.4.1 store the Materials until actual delivery and charge the Client for the reasonable costs (including insurance) of storage; or
6.5 Delivery shall constitute acceptance of the Services.
6.6 The Company shall have no liability to the Client for the loss or damage suffered in consequence of any failure or breakdown of any server on to which the Services whether in accordance with Clause 6.2 or otherwise.
7. RISK AND PROPERTY
7.1 Risk of damage to or loss of the Services and/or Materials shall pass to the Client at the time of delivery or if the Client wrongfully fails to take delivery the time when the Company has tendered delivery of the Services.
7.2 Notwithstanding delivery and the passing of risk or any other provision of these Conditions the property in the Services shall not pass to the Client until the Company has received in cash or cleared funds payment in full of the price for the Services and all other sums then due and payable by the Client to the Company.
7.3 Until the property in the Services passes to the Client the Client shall hold the Materials as the Company’s fiduciary agent and bailee and shall keep the Materials separate from those of the Client and third parties and properly stored protected and insured and identified as the Company’s property. Until that time (or if earlier up to the time that an event occurs which causes clause 10 of these Conditions to apply) the Client shall be entitled to resell or use Materials in the ordinary course of its business but shall account to the Company for the proceeds of sale or otherwise of the Materials whether tangible or intangible including insurance proceeds and shall keep all such proceeds separate from any moneys or property of the Client and third parties and in the case of tangible proceeds properly stored protected and insured.
7.4 Until such time as the property in the Services passes to the Client the Company shall be entitled at any time to require the Client to deliver up the Services to the Company and if the Client fails to do so forthwith to enter upon any premises of the Client or any third party where material comprised in the Services is stored and to repossess the same.
7.5 The Company is expressly authorised at any time after delivery and until the property in the Services passes to the Client without prior reference to the Client to require any person then hosting the Website to remove the same from its servers without the need to obtain the prior consent of the Client and without any liability on the part of that person to the Client.
7.6 Unless otherwise agreed in writing, all origination materials and files and code remain the property of the Company.
8. WARRANTIES AND LIABILITY
8.1 Subject to the conditions set out below the Company warrants that all reasonable skill and care will have been taken in the provision of the Services and will once notified use reasonable endeavours to correct any fault in the Services as quickly as is reasonably practicable.
8.2 The above warranty and obligation to correct faults are given by the Company subject to the following conditions:
8.2.1 the Company shall be under no liability in respect of any defect in the Services arising from a Client Specification; and
8.2.2 the Client acknowledges that it is technically impractical to provide Website Services free of all faults and that the Company does not undertake to do so.
8.3 Except in respect of death or personal injury caused by the Company’s negligence the Company shall not be liable to the Client by reason of any representation or any implied warranty condition or other term or any duty at common law or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise) costs expenses or other claims for consequential and/or indirect compensation whatsoever (and whether caused by the negligence of the Company its employees or agents or otherwise) which arise out of or in connection with the supply of the Services.
8.4 The Company shall only be liable for loss of or damage to Client’s Materials which shall have previously been notified to the Company in writing as being original.
8.5 In all instances the Company’s overall liability will not exceed the value of all third-party costs within any one order.
8.6 The Company shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Company’s obligations in relation to the Goods if the delay or failure was due to any cause beyond the Company’s reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond the Company’s reasonable control:
8.6.1 Act of God explosion flood tempest fire or accident;
8.6.2 war or threat of war sabotage insurrection civil disturbance or requisition;
8.6.3 acts restrictions regulations bye-laws prohibitions or measures of any kind on the part of any governmental parliamentary or local authority;
8.6.4 import or export regulations or embargoes;
8.6.5 strikes lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party);
8.6.6 difficulties in obtaining raw materials labour fuel parts or machinery;
8.6.7 power failure or breakdown in machinery.
9.1 All intellectual property rights used or embroiled in or in connection with or pertaining to software supplied to the Client by the Company under or in connection with the Services shall be and remain the sole property of the Company or of any licensor thereof. No title or intellectual property rights therein or in any modification or extension thereto shall pass to the client.
9.2 Unless stated otherwise in writing by the Company, any image, artwork or graphical representation (“Images”) provided by the Company under or in connection with the Services shall be licenced to the Client solely for the purpose or purposes and/or the period of time and/or within the territory (“the Territory”) and/or in connection with the number of replications stated in the specification submitted by the Client or prepared by the Company and forming the basis of the Client’s order.
9.3 The Client shall not licence Images to third parties located outside the Territory, or to any persons or entities in the Territory which the Client has reason to believe intend to re-licence, sell or otherwise distribute such Images, without the Company’s prior written approval. The Client shall not engage any other agency, distributor or other person or entity (which includes individuals who are not the Client’s employees) to license, sell or otherwise distribute Images to third parties without the Company’s prior written consent. Any distribution channels not specifically accounted for are reserved by the Company.
9.4 The Client hereby agrees to indemnify, defend, save, and hold the Company and its successors, officers, directors, employees, and agents harmless from any and all claims, demands, losses, or damages (including reasonable legal fees and expenses) arising out of or in connection with any claim by a third party which results from or arises under the Client’s use of modification of any Image or combination of any Image with any other material, its failure to abide by any restriction regarding the use of an Image, or any claim by a third party related to the use of an Image, alone or in combination with any other material.
10. INSOLVENCY OF CLIENT
10.1 This clause applies if:
10.1.1 the Client makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
10.1.2 an encumbrancer takes possession or a receiver administrator receiver or administrator is appointed of any of the property or assets of the Client; or
10.1.3 the Client ceases or threatens to cease to carry on business; or
10.1.4 the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Client and notifies the Client accordingly.
10.2 If this clause applies then without prejudice to any other right or remedy available to the Company the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Client and if the Services have been supplied but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11. DATA PROTECTION
Unless specific written instructions to the contrary are received from the Client the Company reserves the right to put names and other information relating to its clients into a computerised directory for internal use and for external promotional use.
12 . THIRD PARTY RIGHTS
Nothing in these Conditions shall confer on any third party any right pursuant to the Contracts (Rights of Third Parties) Act 1999.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 Neither Party will obtain any ownership or licence of the other Party’s Intellectual Property Rights.
13.2 All ownership rights for commissioned content, imagery or online assets created and developed specifically by the Company to fulfil the Client Specification will transfer to the Client on completion and all payment schedules have been completed.
13.3 All ownership rights for content, imagery or online assets and services owned by a third party shall remain the property of the third party. All licensing for third party content, imagery or online assets and services used to fulfil the Client Specification which was sourced by the Company will be the responsibility of the Company and managed by the Company on behalf of the Client up to completion of the original license. Any further third-party licensing requirements after the completion of the original license will be the responsibility of the client and managed by the client.
13.4 All licensing for third party content and imagery used to fulfil the Client Specification which was sourced by the Client will be the responsibility of the Client and managed by the Client
13.5 The Client will be made aware of all licensing terms for the use of the third party content. The Client must not use the third party content or imagery outside the licensing terms specified by the Company. Any inappropriate or unspecified use of third party content or imagery will constitute a material breach of these terms and be subject to penalty.
14.1 The Parties will keep all nominated Confidential Information in strict confidence. The recipient will:
14.1.1 use a reasonable standard of care in protecting Confidential Information of or relating to the disclosing party, which will not be less than the standard of care the recipient uses to protect its own confidential information;
14.1.2 only use Confidential Information of or relating to the disclosing party to perform its obligations and exercise its rights under these terms;
14.1.3 not disclose Confidential Information of or relating to the disclosing party to any third party;
14.1.4 when requested by the disclosing Party, return or destroy (and certify the same to the disclosing Party) the Confidential Information of or relating to the disclosing party.
14.2 Information is not “Confidential Information” if it is:
14.2.1 in or enters the public domain other than by breach of clauses 14.1;
14.2.2 already in the recipient’s lawful possession or is obtained by the recipient through a third party who is free to disclose it without confidentiality restrictions;
14.2.3 authorised for release by the disclosing Party’s written consent; or required to be disclosed by law or by a competent court, stock exchange, regulatory body or supra-national authority, provided that reasonable advance notice is provided to the owner of Confidential Information.
14.3 The provisions of this clause 14 will survive for a period of twelve (12) months following the expiry or termination (as appropriate) of these terms.
15. TERM & TERMINATION
15.1 Without prejudice to its other rights or remedies, either party may terminate these terms with one month’s written notice if one or more of the following events occurs:
15.1.1 either party agrees the Contract activities are not deemed to be delivering against the Client key performance indicators and agreed actions to rectify the non-performance have been completed.
15.1.2 either party commits a material breach of these terms which is incapable of remedy or is capable of remedy but has not been remedied within thirty (30) days of receipt of a written notice specifying both the material breach and either party’s intention to terminate these terms if the material breach is not remedied; and/or
15.1.3 either Party may terminate these terms with immediate effect if the other Party: (i) enters into an arrangement, compromise or composition in satisfaction of its debts with its creditors or any class of them; (ii) passes a resolution or makes a determination for it to be wound up; (iii) has a winding-up order or bankruptcy order made against it; (iv) has appointed to it an administrator or administrative receiver; (v) being a partnership, in addition to any of the above, suffers bankruptcy orders being made against all of its partners.
16.1 Any notice to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business of such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
16.2 No waiver by the Company of any breach of the Contract by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.
16.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provisions in question shall not be affected thereby.
16.4 The Contract shall be governed by and construed in by English law and the Parties agree in respect of it to submit to the exclusive jurisdiction of the English Courts.