Terms & Conditions
1 TERMS AND CONDITIONS FOR THE PURCHASE OF SERVICES
2.1 These Conditions shall:
2.1.1apply to and be incorporated into the Contract; and
2.1.2prevail over any inconsistent terms or conditions contained, or referred to, in the Supplier’s quotation, proposal, confirmation of order, specification or other document supplied by the Supplier, or implied by law, trade custom, practice or course of dealing.
2.2 The Supplier’s quotation for Services constitutes an offer by the Supplier to supply the Services specified in it on these Conditions. No offer placed by the Supplier shall be accepted by the Customer other than by the Customer issuing a written and signed purchase order or acceptance of the quotation for Services, at which point a contract for the supply and purchase of those Services on these Conditions will be established. The Supplier’s standard terms and conditions (if any) attached to, enclosed with or referred to in any quotation, specification or other document shall not be incorporated into the Contract.
3 Interpretation
3.1 The definitions and rules of interpretation in this condition apply in these Conditions (“Conditions”).
“Contract” means the Supplier’s quotation for Services and the Customer’s subsequent acceptance of it under condition 1.2;
“Customer” means Purecontent Media Limited, a company incorporated in England (number 06309527) whose registered office is at 40 Market Place, North Walsham, NR28 9BT, United Kingdom;
“Deliverables” means all documents, products and materials developed by the Supplier in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts);
“In-put Material” means all documents, information and materials provided by the Customer relating to the Services, including computer programs, data, reports and specifications;
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Services” means the services to be provided by the Supplier under these Conditions, together with any other services which the Customer takes from the Supplier;
“Specification” means the specification for the Services agreed by the Customer;
“Supplier” means the person, firm or company who supplies the Services to the Customer;
“Supplier’s Team” means the individuals employed, or otherwise contracted to, the Supplier who are involved in the provision of the Services to the Customer;
“VAT” means value added tax chargeable under English law for the time being and any similar additional tax.
4.1 The Services supplied under the Contract shall be provided by the Supplier to the Customer from the date of acceptance by the Customer of the Supplier’s offer.
4.2 The Services supplied under the Contract shall continue to be supplied until the Services are completed in accordance with the Contract or until the Customer terminates the Contract by giving to the Supplier not less than one months‘ notice, or unless the Contract is terminated in accordance with condition 10.
5.1 The Supplier shall manage and complete the Services, and deliver the Deliverables to the Customer or as the Customer may direct, in accordance with the Specification.
5.2 Time is of the essence as to any performance dates in the Specification. If the Supplier fails to meet such performance dates, the Customer may (without prejudice to any other rights it may have):
5.2.1terminate the Contract in whole or in part without liability to the Supplier;
5.2.2refuse to accept any subsequent performance of the Services which the Supplier attempts to make;
5.2.3purchase substitute services elsewhere;
5.2.4hold the Supplier accountable for any loss and additional costs incurred; and
5.2.5have refunded by the Supplier all sums previously paid by the Customer to the Supplier under the Contract.
5.3.1co-operate with the Customer in all matters relating to the Services;
5.3.2 ensure that all members of the Supplier’s Team are adequately skilled, experienced and supervised to perform the Services in accordance with the Contract;
5.3.3 ensure that the Customer is informed of the names of the members of the Supplier’s Team at the start of the provision of the Services;
5.3.4 use all reasonable efforts to not change the membership of the Supplier’s Team during the provision of the Services;
5.3.5 in the event of any such change, inform the Customer of such change and the new Supplier’s Team member’s name and ensure that such new member is adequately skilled, experienced and supervised to perform the Services in accordance with the Contract; and
5.3.6perform the Services with reasonable skill and care.
5.4 The Supplier shall, at the end of each day on which Services are performed, confirm the provision of such Services using the Supplier’s project management software (including timesheets) and any failure or delay in such confirmation shall entitle the Customer to withhold or delay payment for such Services.
6.3 Subject to the compliance of the Supplier with the Contract, the Customer shall pay each invoice properly due, issued and submitted to it by the Supplier, within 60 days of receipt.
6.4 Claims for payment in respect of materials purchased by or services provided to the Supplier, or for reimbursement of expenses, shall be payable by the Customer only if accompanied by relevant receipts.
6.5 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services in such form as the Customer shall approve. The Supplier shall allow the Customer to inspect such records at all reasonable times on request.
6.6 Without prejudice to any other right or remedy it may have, the Customer reserves the right to set off any amount owing at any time to it by the Supplier against any amount payable by the Customer to the Supplier under this agreement.
7.3 The Supplier warrants to the Customer that:
7.3.6the Services will conform with all descriptions and specifications provided to the Customer by the Supplier including the Specification; and
7.3.7the Services and Deliverables will be provided in accordance with all applicable legislation from time to time in force and the Supplier will inform the Customer as soon as it becomes aware of any changes in that legislation.
7.4 The Customer’s rights under this agreement are in addition to the statutory terms implied in favour of the Customer by the Supply of Goods and Services Act 1982 and any other statute.
7.5 The provisions of this condition 6 shall survive any performance, acceptance or payment pursuant to the Contract and shall extend to any substituted or remedial services provided by the Supplier.
8 Intellectual property rights
8.3 The Supplier assigns to the Customer, by way of current assignment of current and future rights, with full title guarantee and free from all third party rights, the Intellectual Property Rights and all other rights in the products of the Services (including the Deliverables).
8.4 The Supplier shall, promptly at the Customer’s request, do or procure to be done all such further acts and things and the execution of all such other documents as the Customer may from time to time require for the purpose of securing for the Customer the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights and all other rights assigned to the Customer in accordance with condition 7.1.
9.3 The Supplier shall indemnify and hold the Customer harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, the Customer as a result of or in connection with:
9.3.6any alleged or actual infringement, whether or not under English law, of any third party’s Intellectual Property Rights or other rights arising out of the use or supply of the products of the Services (including the Deliverables);
9.3.7any claim made against the Customer in respect of any liability, loss, damage, injury, cost or expense sustained by the Customer’s employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the provision of the Services or the Deliverables as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of this agreement by the Supplier; or
9.3.8any of the Supplier’s Team which relates to any act or omission of the Supplier or which relates to their employment by the Supplier or to any allegation that a member of the Supplier’s Team is employed by the Customer.
9.4 During the term of the Contract and for a period of six years thereafter, the Supplier shall maintain in force with a reputable insurance company professional indemnity insurance in an amount not less than £5 million and shall, on the Customer’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium.
9.5 The provisions of this condition 8 shall survive termination of the Contract, however arising.
10.3 The Supplier shall keep in strict confidence all In-put Material and all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Supplier by the Customer, its employees, agents or sub-contractors and any other confidential information concerning the Customer’s business or its products which the Supplier may obtain. The Supplier shall restrict disclosure of such confidential material to its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Supplier’s obligations to the Customer, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Supplier.
10.4 This condition 9 shall survive termination of this agreement, however arising.
11 Termination
11.3 Without prejudice to any other rights or remedies which the Customer may have, the Customer may terminate the Contract without liability to the Supplier on giving the Supplier not less than one month’s written notice or immediately on giving notice to the Supplier if:
11.3.6the performance of the Services is delayed, hindered or prevented by circumstances beyond the Supplier’s reasonable control; or
11.3.7the Supplier commits a material breach of any of the terms of the Contract and fails to remedy that breach within 14 days of being notified in writing of the breach; or an order is made or a resolution is passed for the winding up of the Supplier, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the Supplier; or an order is made for the appointment of an administrator to manage the affairs, business and property of the Supplier, or notice of intention to appoint an administrator is given by the Supplier or its directors or by a qualifying floating charge holder; or a receiver is appointed of any of the Supplier’s assets or undertaking; or the Supplier makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or the Supplier ceases, or threatens to cease, to trade; or the Supplier takes or suffers any similar or analogous action in any jurisdiction in consequence of debt; or
11.3.8there is a change of control of the Supplier.
11.4 On termination of the Contract for any reason the Supplier shall immediately deliver to the Customer:
11.4.6all copies of information and data provided by the Customer to the Supplier for the purposes of the Contract and the Supplier shall certify to the Customer that it has not retained any copies of such information or data, except for one copy which the Supplier may use for audit purposes only and subject to the confidentiality obligations in condition 9; and
11.4.7all specifications, programs (including source codes) and other documentation comprised in the Deliverables and existing at the date of such termination, whether or not then complete, and all Intellectual Property Rights in such materials shall automatically pass to the Customer (to the extent that they have not already done so by virtue of condition 7.1), who shall be entitled to enter the premises of the Supplier to take possession of them.
11.5 If the Supplier fails to fulfil its obligations under condition 10.2, then the Customer may enter the Supplier’s premises and take possession of any items which should have been returned under it. Until they have been returned or repossessed, the Supplier shall be solely responsible for their safe keeping.
11.6 Termination of the Contract, however it arises, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination.
12.3 If any Services are not supplied in accordance with, or the Supplier fails to comply with, any terms of the Contract, the Customer shall be entitled (without prejudice to any other right or remedy) to exercise any one or more of the following rights or remedies:
12.3.6to rescind the Contract; or
12.3.7to refuse to accept the provision of any further Services by the Supplier and to require the immediate repayment by the Supplier of all sums previously paid by the Customer to the Supplier under the Contract; or
12.3.8to require the Supplier, without charge to the Customer, to carry out such additional work as is necessary to correct the Supplier’s failure; and
12.3.9in any case, to claim such damages as it may have sustained in connection with the Supplier’s breach or breaches of the Contract not otherwise covered by the provisions of this condition 11.
13.3 The Customer reserves the right to defer the date for performance of, or payment for, the Services, or to terminate the Contract, if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of the Customer 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 sub-contractors.
14 General
14.3 No variation of the Contract or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of the Customer.
14.4 The Supplier shall not, without the prior written consent of the Customer, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement. The Customer may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
14.5 Nothing in the Contract or these Conditions is intended to, or shall operate to:
14.3.1 create a partnership between the parties, or to authorise either party to act as agent for the other; or
14.3.2 create a relationship of employment between the Customer and the Supplier, or between the Customer and the Supplier’s Team.
14.4 This Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
14.5 The Contract and these Conditions shall be governed by English law and the Supplier and the Customer irrevocably submit to the jurisdiction of the courts of England and Wales.
