Terms and Conditions of Supply
We reserve the right to alter these as we see fit.
1. DEFINITIONS
‘Company’ means Raising Waves Digital Media
‘Customer’ means any person, firm, company or body corporate whether or not incorporated who employs the Company for the provision of Services
‘Contract’ means any contract for the supply of Services by the Company to the Customer
‘Contract Price’ means the agreed fee or scale of charges for the Services plus VAT and disbursements
‘Services’ means code, graphics, designs, audio content, video content, or any other services (and all parts or components of them) supplied by the Company to the Customer
‘Legal Obligations’ means any present or future statute, statutory instrument or bylaw, or any present or future regulation, order, direction, code of practice or requirement of any statutory, public, local or other competent authority or court of competent jurisdiction insofar as it relates to the Services or to their use irrespective of the person on whom the obligation is imposed.
2. EXISTENCE OF CONTRACT
2.1 The Contract is liable to cancellation unless accepted in writing by the Company. Acceptance shall only be by means of any written acknowledgement whether or not it seeks to impose new conditions (unless clearly stated on its face to be a counter-offer) or delivery of the Services.
2.2 The Contract shall incorporate any specifications or conditions referred to in pre-contract negotiations and the conditions set out below and all terms and conditions implied by law.
2.3 Except as expressly provided for in this Contract no variation or amendment of this Contract or oral promise or commitment related to it shall be valid unless committed to writing and signed by or on behalf of both parties.
2.4 These conditions shall be incorporated in the Contract to the exclusion of any terms or conditions stipulated or referred to by the Customer.
3. SUPPLY OF SERVICES
3.1 The Company shall:
3.1.1 on despatch of the Services or completion of any work send invoices in which VAT will be shown as a strictly net item;
3.1.2 send by the tenth day of each month a statement of all invoices rendered during the previous month; and
3.1.3 mark the Company’s reference on all invoices, advice notes, statements, and correspondence.
4. TERMS OF PAYMENT ETC
4.1 A deposit of 50% of the total fee is due with order, unless otherwise agreed, in which case payment is due upon completion of Services. Whilst any payment due under the agreement remains outstanding, the Company shall be entitled at its sole and absolute discretion to withhold provision of any goods or services it would otherwise be obliged to provide under the agreement.
4.2 All invoices become due for payment 7 days after the invoice date.
4.3 The Company may at its sole discretion charge late payment interest at the rate of 1½% per month or part thereof calculated on the outstanding balance.
4.4 Without prejudice to any other remedy the Company may suspend or delay Services without penalty if the Customer fails to comply with the provisions of condition 4.
4.5 Where payment is referred to a third party the Company shall be entitled to recover the Contract Price (or such proportion thereof as the Services referred to the third party shall bear to the Contract Price.
5. DELIVERY
The Company shall;
5.1 furnish such timetables, schedules or programmes for completion of the Contract (‘the Completion Date’) as the Customer requires and shall promptly advise the Customer in writing if such timetables, schedules or programmes are or are likely to be delayed;
5.2 on completion of website work, upload the work to the client area of the Company hosting server for approval under the terms of the guarantee. Upon written approval by the client, the deliverables will be uploaded to the clients server. Where the clients site is being hosted by a third party, the Company reserves the right to delay uploading of deliverables until full payment has be received;
5.3 adequately pack and protect the Services against damage and deterioration and deliver them not earlier or later than the time or times specified in the Contract at the delivery point or points specified by the Customer;
5.4 have no responsibility for packing materials or cases;
5.5 be responsible for any expenses incurred to deliver Services to the correct delivery point; and
5.6 make every effort within its power to adhere to the Completion Date but shall not be held liable for any consequential loss or losses due to non or late delivery of the Services.
6. PASSING OF TITLE AND RISK
6.1 Title in all Services, documents of any kind including web pages, designs, graphics, music and video content shall remain vested in the Company as soon as they are prepared or obtained by the Company. The Customer shall clearly mark and store all such items so that they can be identified as the property of the Company, make them available for inspection by the Company at any time and comply with all instructions of the Company with regard to them.
6.2 Risk in the Services shall not pass to the Customer until delivery.
7. FREE ISSUE MATERIALS
7.1 All materials (including without limitation any tools, drawings, patterns, gauges, samples and specifications made available by the Company in connection with the Contract) shall be and remain the property of the Company and the Customer shall:
7.1.1 keep those materials in good order and condition and be responsible for any loss of or damage to them; and
7.1.2 use those materials only for the purposes of the Contract.
8. TERMINATION/REJECTION
8.1 If the Customer defaults in any of its obligations under the Contract, becomes insolvent, has a receiver appointed of its business or is compulsorily or voluntarily wound up or if the Company bona fide believes that any of such events may occur the Company shall be entitled, at its discretion without prejudice to any other remedy, to suspend the performance of or terminate the Contract and in the event of termination to keep possession of any Services or take possession of any items belonging to the Customer and to enter any premises of the Customer for that purpose.
8.2 If any Services do not conform to the Contract on any grounds (including without limitation by reason of quality or being unfit for the purpose for which they are required) which are, in the sole discretion of the Company, reasonable then the Customer shall be entitled at its discretion without prejudice to any other remedy to exercise the following rights:
8.2.1 permit the Company to replace, or reinstate the Services so that they conform to the Contract and if not so replaced or reinstated within 5 working days reject the Services in whole or in part; or
8.2.2 carry out or have carried out at the Company’s expense such work as is necessary to conform the Services to the Contract save always that the cost of such work shall be limited to the Contract price as herein stated.
8.3 If the Customer terminates the Contract by any method permitted herein the Company shall;
8.3.1 invoice the Customer for all work done up to the time of its receipt of the Notice of Termination in accordance with clause 14 plus 20% of the Contract Price for Services remaining to be completed; and
8.3.2 be entitled to retain all payments already made by the Customer; and
8.3.3 be entitled to treat the Contract as having been fulfilled.
8.3.4 No compensation shall be payable to the Customer on termination or rejection.
8.3.5 None of the demand for or the acceptance of payments under this Contract or the failure by the Company to enforce any of the terms or conditions of this Contract at any time or for any period will release or exonerate or in any way affect the liability of the Customer or be a waiver of:
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those terms or conditions;
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the right of the Company at any time afterwards to enforce each and every term and condition of this Contract; or
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any penalty attached to their non-performance.
9. WARRANTY
9.1 No liability for accuracy shall extend beyond the scope of the Services.
9.2 The Customer shall be responsible for any errors or omissions in any designs, textual content or particulars supplied by it whether or not such information has been approved by the Company.
9.3 The Company shall compensate the Customer in full on demand for any claim that any Services prepared or supplied under the Contract infringe or are alleged to infringe the rights of any third party claimed under or in connection with any patent, registered design, copyright or breach of confidence.
9.4 The Company shall, at its own expense, make good any defects which under proper use appear in the Services during the period of 3 months beginning on their delivery.
10. LOSS AND INDEMNITY
10.1 The Company shall be at all times fully insured with a reputable insurer against all insurable liability under the Contract.
10.2 The Customer shall provide all facilities, assistance and advice required by the Company or its insurers for the purpose of contesting or dealing with any action claim or matter arising out of the Company’s performance or purported performance of or failure to perform the Contract.
11. CONFIDENTIALITY
11.1 No rights are granted to the Customer in respect of any information disclosed pursuant to this Contract or in connection with its subject matter until full payment has been recieved.
11.2 The Customer shall not make any more copies of any of the work provided than are essential for the Customer's operation.
11.3 The Customer acknowledges that the copyright in the work provided and in all documents and other material in any format supplied by the Company under this Contract as part of the Services shall belong to and remain vested in the Company.
11.4 The Company will grant an irrevocable licence in favour of the Customer or a third party nominated and identified by the Customer upon (but not before) payment of the Contract Price.
11.5 Prior to issue of an invoice covering the Services the Company may at its sole discretion grant a temporary licence in favour of the Customer or a third party nominated and identified by the Customer but in no circumstances shall such temporary licence extend beyond 30 days after the date of the invoice subsequently rendered. For the avoidance of doubt the Customer or third party will have committed a breach of Copyright if:
11.5.1 the Services are used by one or both of them after 30 days have elapsed following the invoice date; and
11.5.2 payment has not been made in full settlement of the amount due; and
11.5.3 the Customer or the third party shall irrevocably hold the Services as bailee in a fiduciary capacity.
11.6 The Customer shall;
11.6.1 take care of the Services and copies; and
11.6.2 take reasonable precautions to minimise damage to them by employees or others;
11.6.3 not cause or permit anything which may damage or endanger them; or
11.6.4 alter, deface, remove any identification markings or any indications revealing the source of the Services; or
11.6.5 hold them out to be anything other than the property of the Company.
11.7 The Customer acknowledges that Services already supplied or shown to its employees or agents by the Company on or before the Commencement Date shall be deemed to have been furnished under this Contract.
11.8 Both parties agree to use their best endeavours to minimise the risk of disclosure of such confidential information by employees and others except insofar as it is expressly permitted under this Contract.
11.9 The Customer may communicate limited information on the Services to employees and sub-contractors approved by the Company or actual or prospective customers to the extent that it is bona fide necessary for the use of the Services if it is no more than is necessary in the circumstances and a written undertaking of secrecy is obtained.
11.10 The Customer shall not at any time whether before or after the termination of the Contract divulge or use any unpublished technical information deriving from the Company or any other confidential information in relation to the Company’s affairs or business or method of carrying on business.
11.11 All records in any medium (whether written, computer readable or otherwise) including accounts, documents, drawings and other papers including private notes concerning the Company and all copies and extracts of them made or acquired by the Customer in the course of this Contract are the property of the Company, and the Customer shall:
11.11.1 use them only for the purposes of the Contract; and
11.11.2 return them to the Company on demand at any time.
12. STATUTORY AND OTHER REQUIREMENTS
12.1 The Customer undertakes that the Services are safe and without risk to health when properly used and comply in all respects with all Legal Obligations in force at the date of delivery.
12.2 The Customer shall supply in respect of the Services such information about their use (including but not limited to proper evidence of all tests and examinations and research) as is reasonably required by the Company and which enables the Company to comply with all Legal Obligations so far as it is required to do.
13. ASSIGNMENT AND SUB-CONTRACTING
13.1 The Company shall not assign or (without first obtaining the Company’s written consent) sub-contract this Contract in whole or in part and it shall be a condition of any such consent to any sub-contracting of this Contract that the Company shall:
13.1.1 ensure and be responsible for the compliance by any sub-contractor with the terms of the Contract;
13.1.2 include in the sub-contract provisions consistent with these conditions for the benefit of and enforceable by the Customer; and
13.1.3 furnish the Customer with copies of any sub-contract upon the Customer’s request at any time.
14. NOTICES
14.1 Any notice given under this Contract shall be in writing and may be served:
14.1.1 personally;
14.1.2 by registered or recorded delivery mail;
14.1.3 by facsimile transmission confirmed by post
14.2 A notice shall be deemed to have been served:
14.2.1 if it was served in person, at the time of service;
14.2.2 if it was served by post, 48 hours after it was posted; and
14.2.3 if it was served by facsimile transmission, at the time of transmission.
15. TIME OF ESSENCE
Time for payment of the Company’s invoices shall be of the essence of the contract.
16. LAW AND JURISDICTION
This Contract shall be governed by English law and the Customer consents to the exclusive jurisdiction of the Colchester courts in all matters regarding it except to the extent that the Company invokes the jurisdiction of the courts of any other country.
