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Client Terms and Conditions

CLIENT TERMS AND CONDITIONS

The Client's attention is particularly drawn to the provisions of clause 8.

1. INTERPRETATION
1.1 Definitions.  In these Conditions, the following definitions apply:
AdWords Campaign Management Services:  management of the Client’s Google AdWords campaigns over an agreed period of time, including initial set-up and ongoing management.
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 Client for the supply of the Services in accordance with clause 4.4(c).
Client:  the person or firm who purchases Services from MA Design.
Client Website:  the Client’s website or websites at the URL(s) listed in the Specification.
Commencement Date:  has the meaning set out in clause 2.2.
Conditions:  these terms and conditions as amended from time to time in accordance with clause 12.7.
Contract:  the contract between MA Design and the Client for the supply of Services in accordance with these Conditions.
Deliverables:  the SEO Pages, reports, analyses, statistics, content and other materials required to be delivered by MA Design in accordance with the Contract and the Specification, together with any other deliverables set out in the Order produced by MA Design for the Client.
Domain Name: an internet domain name that is registered through a Registry.
Domain Name Registration Services:  the engagement of MA Design by the Client to procure registration of a specified Domain Name, as set out in the Order.
Graphic Design Services:  the provision of graphic design services to the Client as set out in the Order and/or Specification.
ICANN: the Internet Corporation for Assigned Names and Numbers.
Integrated Marketing Services:  the provision of search engine optimisation (SEO) and social media optimisation (SMO) services to the Client by MA Design in relation to the Client Website(s).
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.
MA Design:  MA Design Solutions Limited registered in England and Wales with company number 05294974 and with its registered office at The Paddocks, Lassington, Highnam, Gloucestershire, GL2 8DD.
MA Design Website:  the website at www.ma-design.biz owned and operated by MA Design.
Materials:  the content provided to MA Design by the Client from time to time in order for MA Design to generate the SEO Pages and otherwise perform the Services, including without limitation text, graphics, photographs, designs, videos, and artwork.
Order:  the Client's order for Services as set out in the Client's order form.
Photography and/or Computer-Generated Imagery (CGI) Services:  the provision of photographic and/or CGI-related services to the Client as set out in the Order and/or Specification.
Pre-Existing Work:  the works, concepts, items and materials either developed or procured to be developed by MA Design or its personnel at any time for use in relation to MA Design's business or any or all of MA Design's clients generally and not specifically for the provision of the Services or the Deliverables to the Client.
Print Management Services:  the provision of print management services to the Client as set out in the Order and/or Specification.
Registry:  any of the Domain Name registries or registrars operated under the rules of ICANN.
SEO Pages:  the web pages developed by MA Design under the Contract and the Specification containing content, links, tagging and other search engine optimisation techniques in order to increase the ranking and prominence of a Client Website (and/or its web pages) in the result pages of search engines.
Services:  the services, including the Deliverables, supplied by MA Design to the Client as set out in the Specification.
Specification:  the description or specification of the Services set out in the Order or otherwise provided in writing by MA Design to the Client.
Third Party Products: the third party software products (if any) incorporatedinto a website in connection with the Website Design Services.
Training Services:  the provision of training courses, master classes, educational sessions and/or seminars to the Client as set out in the Order and/or the Specification.
Website Design Services:  the provision of website design services to the Client as set out in the Order and the Specification.
Website Hosting Services:  the provision of website hosting services to the Client in relation to the Client Website(s) as set out in the Order and the Specification.
Website Maintenance Services:  the provision of website maintenance services to the Client as set out in the Order and the Specification.

1.2 Construction.  In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) 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;
(d) 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
(e) a reference to writing or written includes faxes and e-mails.

2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions. 
2.2 The Order shall only be deemed to be accepted when an authorised signatory of MA Design countersigns the Order, at which point and on which date the Contract shall come into existence (Commencement Date). 
2.3 The Contract constitutes the entire agreement between the parties.  The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of MA Design which is not set out in the Contract. 
2.4 Any samples, drawings, descriptive matter or advertising issued by MA Design, and any descriptions or illustrations on the MA Design Website from time to time, are issued or published for the sole purpose of giving an approximate idea of the Services described in them.  They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any quotation given by MA Design shall not constitute an offer, and is only valid for a period of 60 Business Days from its date of issue.

3. SUPPLY OF SERVICES
3.1 MA Design shall supply the Services to the Client in accordance with the Specification in all material respects. 
3.2 MA Design shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.  MA Design reserves the right to amend any such performance dates if it is in MA Design’s sole opinion reasonably necessary to do so (for example (but without limitation) if the Client supplies text or images late or incomplete, or where third parties are involved).
3.3 MA Design shall have the right to make any changes to the Services which are necessary to comply with any applicable law or regulatory requirement, or which do not materially affect the nature or quality of the Services, and MA Design shall notify the Client in any such event.
3.4 MA Design warrants to the Client that the Services will be provided using reasonable care and skill.

Integrated Marketing Services:

3.5 Where MA Design provides Integrated Marketing Services to the Client, the Client acknowledges and agrees that MA Design does not guarantee first position or consistent top ten positions for any particular keyword, phrase or search term as it is solely at the discretion of the search engines themselves to list a website.  The Client further acknowledges that MA Design has no control over the policies of search engines with respect to the type of websites and/or content that they accept, or the way in which websites are ranked either now or in the future.  As a result search engines may:
(a) stop accepting submissions from MA Design for an indefinite period of time with or without notice; or
(b) cease to list a website at their discretion (however should a website not reappear within 30 days of it not being listed, then MA Design will re-optimise the applicable Client Website based on the current policies of the relevant search engine at a cost to be agreed between the parties),
and  MA Design shall not be liable to the Client for any such actions of search engines.
3.6 MA Design makes no warranties or representations as to the prominence of the Client Website within search engine results or as to the business that the Client will generate through such site.
3.7 The Client acknowledges that MA Design is not responsible for changes made to a Client Website by:
(a) other parties; or
(b) the Client in choosing to link to or obtain a link from a particular website without prior consultation with MA Design,
that adversely affect the search engine rankings of the Client Website in question.

AdWords Campaign Management Services:

3.8 Where MA Design provides AdWords Campaign Services to the Client, the duration and scope of the relevant campaign shall be as stated in the Order.
3.9 Neither party shall change the login details in relation to the Client’s Google AdWords account during the Contract unless agreed in writing in advance by both parties.
3.10 The Client agrees that any tools, coding, new keywords and any knowledge gained as a result of the provision of the AdWords Campaign Management Services by MA Design cannot be used in any other Google Adwords account the Client may have, or may itself create, during the term of the Contract.
3.11 MA Design makes no warranties or representations as to the volume of click throughs that will be achieved for the Client Website as a result of the AdWords Campaign Management Services or as to the prominence of the Client Website within AdWords results or as to the business that the Client will generate through such site.
3.12 The Charges payable by the Client in respect of the AdWords Campaign Management Services are for the provision of those services only; such Charges do not include the cost-per-click or other charges levied by Google in respect of the relevant Google AdWords campaigns, which are payable by the Client to Google.

Domain Name Registration Services:

3.13 Where MA Design is engaged to provide Domain Name Registration Services to the Client, MA Design will not be responsible for arranging or procuring any renewal of the Domain Name(s) in question, which shall be the Client’s sole responsibility and at the Client’s cost.  MA Design will not be liable for any loss that the Client suffers as a result of any failure by the Client to renew the Domain Name registration or if the Client sells or otherwise transfers the Domain Name to a third party.
3.14 The Registry may reject applications for Domain Names based on its standard rules for handling applications. MA Design does not guarantee that any application made on the Client’s behalf for a Domain Name will be accepted.
3.15 If the Client’s preferred choice of Domain Name is not available, MA Design will give you the option to select an alternative Domain Name.
3.16 MA Design does not give any guarantee that any of the Client’s preferred Domain Names are available or are able to be registered. Any actions that the Client takes before MA Design confirms that the Domain Name has been officially registered, for example publishing the preferred Domain Name, are at the Client’s own and sole risk.
3.17 The Client agree to inform both MA Design and the Registry promptly of any:
(a) change to the Client’s registered details for the Domain Name, for example the Client’s contact information; and
(b) actual or potential claims brought by or against the Client in connection with the Domain Name.
3.18 When MA Design registers a Domain Name, the Client understands and accepts that MA Design will be acting on the Client’s behalf as its representative. The Client agrees to comply with the terms and conditions, rules and policies of the Registry or Registries where the Domain Names are registered.
3.19 If the Domain Name is to be transferred from one Registry to another, the Client agrees to provide any assistance that MA Design or the Registries require in order for the transfer to take place.
3.20 When MA Design provides you with a domain name it acts as a reseller of 1&1 Internet Limited. As well as complying with the terms and conditions, rules and policies of the relevant Registry or Registries (including www.1and1.co.uk), the Client agrees at all times to comply with their Master Domain Registration Agreement (MDR) for each Domain Name that MA Design registers on the Client’s behalf. This is an agreement between the Client and 1&1 Internet Limited and the wording is standard for any agreement relating to registering a Domain Name, whether this is done through us or directly with a Registry, and MA Design is unable to change the wording of the MDR. It is strongly recommended that the Client reads the MDR (and any documents, rules and policies referenced and linked to within the MDR) very carefully and that if necessary, seeks independent legal advice to ensure that the Client has fully understood the MDR. In particular the Client should carefully consider the clauses relating to “liability” and “indemnities” contained in the MDR as these may affect the Client’s legal rights.
3.21 MA Design also recommends that the Client reads ICANN's Registrants’ Rights and Responsibilities document www.icann.org/en/resources/registrars/registrant-rights/responsibilities-27jun11-en.htm. This document contains important information about the Client’s rights and duties relating to the Domain Name that MA Design registers on the Client’s behalf.

Website Design Services:

3.22 Where MA Design provides Website Design Services to the Client, MA Design will liaise with the Client in developing the look and feel of the relevant website, and will design, develop and deliver the Site in accordance with the Specification in all material respects.
3.23 The Client acknowledges that MA Design’s ability to provide the Website Design Services is dependent upon the full and timely co-operation of the Client (which the Client agrees to provide), as well as the accuracy and completeness of the design specifications provided by the Client and any other information and data the Client provides to MA Design.
3.24 The Client acknowledges that MA Design has no control over any content placed on the website in question by visitors, and does not purport to monitor the content of such website.  MA Design reserves the right to remove content from the relevant website where it reasonably suspects such content is Inappropriate Content (as defined in clause 4.1(e) below). MA Design shall notify the Client promptly if it becomes aware of any allegation that any content on the website may be Inappropriate Content.
3.25 The Client authorises MA Design to publish the completed website to the appropriate web search engines and other web directories and indices (if the Client so requires).
3.26 The Client acknowledges that MA Design develops the Client’s website for compatibility with the operating environment (including without limitation content management systems, web browsers, and mobile devices) current at the date of the Specification.  MA Design is not responsible for ensuring the continued compatibility of the website with its evolving operating environment, which is by its nature dynamic and subject to change over time, and MA Design is not responsible for updating or amending the Client’s website on an ongoing basis to adapt to its changing operating environment or to new or evolving technologies.
3.27 The Third Party Products (if any) shall be supplied in accordance with the relevant licensor's standard terms. The one-off licence fee for such Third Party Products is included in the Charges payable under clause 5.

Website Hosting Services:

3.28 MA Design will provide Website Hosting Services to the Client for the period set out in the Order, and solely in relation to the Client Website(s) referred to in the Order.  MA Design has its own dedicated server space, which is provided by a specialist third party supplier and from which it operates all websites it hosts on behalf of its clients. 
3.29 It is the Client’s sole responsibility to ensure that any webpages and related data pertaining to the Client Website(s) are backed-up or copied from any previous versions of the Client Website(s) before MA Design commences provision of the Website Hosting Services, and MA Design accepts no liability for any failure on the part of the Client to comply with this clause 3.29.
3.30 Where MA Design provides Website Hosting Services to the Client, the Client acknowledges that MA Design has no control over any content placed on the Client Website(s) by visitors, and does not purport to monitor the content of the Client Website(s).  MA Design reserves the right to remove content from the Client Website(s) where it reasonably suspects such content is Inappropriate Content (as defined in clause 4.1(e) below). MA Design shall notify the Client promptly if it becomes aware of any allegation that any content on the Client Website(s) may be Inappropriate Content.
3.31 In the event of any problems with the transfer of the Client Website(s) to the server nominated by MA Design for hosting purposes, any time spent by MA Design dealing with such problems will be charged to the Client as additional services at MA Design’s then current hourly rate, and is not included within the pricing of the Website Hosting Services.  MA Design accepts no responsibility for any site transfer problems caused by the Client or a third party.
3.32 The Client is responsible at its own expense for ensuring that MA Design is able to access the Client’s current web host servers from MA Design’s offices.
3.33 MA Design may include the statement "[Powered by/maintained by/designed by or similar, as applicable] MA Design Solutions Limited" on the home page of the Client Website(s) in a form to be agreed.

Website Maintenance Services:

3.34 MA Design will provide Website Maintenance Services to the Client for the period set out in the Order, and solely in relation to the Client Website(s) referred to in the Order.  Where the Order does not set out any such period, the period will be 90 days.
3.35 The Website Maintenance Services are limited to minor webpage maintenance to regular web pages over a three-month period, including updating links and making minor changes to a sentence or paragraph, and do not include services such as substantive changes, removing nearly all the text from a page and replacing it with new text, inserting pages, adding additional Content Management System (CMS) functionality, or any similar services.
3.36 Due to the nature of different web authoring software, MA Design cannot warrant that webpages produced by MA Design can be edited by computer software programmes other than the computer software programme used by MA Design to produce the original native document.  If the Client or a third party other than MA Design attempts to update the Client's webpages, any time spent by MA Design in repairing those webpages will be charged to the Client as additional services at MA Design’s then current hourly rate, and is not included within the pricing of the Website Maintenance Services.  MA Design accepts no responsibility for any changes made by the Client or a third party.

Print Management Services

3.37 MA Design will provide such print management services (Print Management Services) to the Client as are set out in the Order and/or Specification (if any), subject to the following and any such additional terms as are set out therein.
3.38 The Client acknowledges that where MA Design provides Print Management Services, MA Design will either:
(a) refer the Client to a third party provider of such services, in which case the Client will enter into a contract directly with the provider in relation to the services it requires, and MA Design will have no further involvement in, or liability for, the services in question.  In particular, MA Design offers no guarantee or warranty to the Client in relation to any aspect of those third party services, including as to their quality or fitness for the Client’s purposes.  The Client acknowledges that this is reasonable because MA Design does not have any control over the third party or the services it supplies; or
(b) MA Design will commission the print services from a third party to fulfil the Client’s requirements as documented in the Order and/or Specification, and will manage those services on behalf of the Client.  The role of MA Design is to ensure that those services are managed efficiently and in accordance with the requirements of the Client as documented in the Order and Specification. 

Training Services

3.39 MA Design will provide such training services (Training Services) to the Client as are set out in the Order and/or Specification (if any), subject to the following and any such additional terms as are set out therein.
3.40 MA Design reserves the right to vary or cancel a training course, session or event where the occasion necessitates and accepts no liability if, for whatever reason, the event does not take place.
3.41 Subject always to the provisions of clause 8 below, and to the extent permitted by law, neither MA Design nor its individual presenters will be liable by reason of breach of contract, negligence or otherwise for any loss or consequential loss occasioned to any person acting omitting to act or refraining from acting in reliance upon the course material or presentation of the course, or arising from or connected with any error or omission in the course material or presentation of the course.  For the purposes of this clause 3.41, consequential loss shall be deemed to include, but is not limited to, any loss of profits or anticipated profits, damage to reputation or goodwill, loss of business or anticipated business, damages, costs, expenses incurred or payable to any third party or any other indirect or consequential losses.

Photography and/or CGI Services

3.42 MA Design will provide such photography and/or CGI services (Photography and/or CGI Services) to the Client as are set out in the Order and/or Specification (if any), subject to the following and any such additional terms as are set out therein.
3.43 The Client acknowledges that where MA Design provides Photography and/or CGI Services, MA Design will either:
(a) refer the Client to a third party provider of such services, in which case the Client will enter into a contract directly with the provider in relation to the services it requires, and MA Design will have no further involvement in, or liability for, the services in question.  In particular, MA Design offers no guarantee or warranty to the Client in relation to any aspect of those third party services, including as to their quality or fitness for the Client’s purposes.  The Client acknowledges that this is reasonable because MA Design does not have any control over the third party or the services it supplies; or
(b) MA Design will commission the Photography and/or CGI Services from a third party to fulfil the Client’s requirements as documented in the Order and/or Specification, and will manage those services on behalf of the Client.  The role of MA Design is to ensure that those services are managed efficiently and in accordance with the requirements of the Client as documented in the Order and Specification.

Graphic Design Services

3.44 MA Design will provide such graphic design services (Graphic Design Services) to the Client as are set out in the Order and/or Specification (if any), subject to the following and any such additional terms as are set out therein.
3.45 The Client acknowledges that, on occasion, MA Design may commission the graphic design services from a third party to fulfil the Client’s requirements as documented in the Order and/or Specification, and will manage those services on behalf of the Client.  Where this is the case, the role of MA Design is to ensure that those services are managed efficiently and in accordance with the requirements of the Client as documented in the Order and Specification.

All Services

3.46 MA Design cannot and does not give any warranty or representation that any Services will be uninterrupted or free of faults.  If any representations or guarantees apply to the Services by law, MA Design excludes those as far as it is within its rights to do so. If a fault occurs in any Services the Client should report it immediately by contacting MA Design on fault@ma-design.biz, and MA Design will attempt to correct the fault as soon as it reasonably can.
3.47 The Client’s access to the Services or the availability of the Services may occasionally be restricted to allow for repairs, maintenance or the introduction of new facilities or services.  MA Design will attempt to restore the service as soon as it reasonably can.
3.48 MA Design reserves the right at any time to make any changes to the Services which are necessary to comply with any applicable laws or regulations, or which do not materially affect the nature or quality of the Services.
3.49 Some of the Services rely on third parties (including, but not limited to, third party hosts, Google, Facebook, Twitter, and externally hosted code libraries such as Google Font Directory, Google Translate, Google Analytics and other such services) to do certain things, and on the availability of internet connectivity. The Client acknowledges that:
(a) MA Design may not be able to provide a particular Service feature where the Client does not meet criteria set down by a relevant third party;
(b) MA Design does not have any control or exercise influence over the third party’s own services; and
(c) a third party’s service may stop or change from time to time. The Client acknowledge that these are Force Majeure Events (as defined in clause 11) and MA Design will not be responsible for any impact these events may have.
3.50 In relation to the matters referred to in clause 3.49, MA Design will use its reasonable endeavours to overcome the issue in question, subject to the Client’s timely cooperation and to the cost being agreed between the parties (such costs not being included within the pricing of the relevant Services).
3.51 Your Site may include ‘contact form’ functionality that allows visitors to Your Site to submit messages to the Client.  Occasionally, these messages may be delayed or not received at all and MA Design shall have no liability to the Client for this.
3.52 The Services do not include the provision of computer or other necessary equipment to access the Services.  To use the Services the Client will require internet connectivity and appropriate telecommunication links.  MA Design will not be liable for any telephone or other costs that the Client may incur.
3.53 The Services are provided in the English language only.

4. CLIENT'S OBLIGATIONS 

4.1 The Client shall:
(a) ensure that the terms of the Order and any information it provides in the Specification are complete, accurate and up to date;
(b) co-operate with MA Design in all matters relating to the Services;
(c) provide MA Design, its employees, agents, consultants and subcontractors, with access to the Client's web hosting service, any relevant files or literature and such other information and facilities as reasonably required by MA Design;
(d) provide MA Design with such information and materials as MA Design may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects, and is provided in accordance with any timescales stipulated by, and in the format specified by, MA Design; 
(e) ensure that the Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content);
(f) permit MA Design to access the Client’s Google AdWords account, web page directory, cgi-bin directory, and any other programs or directories reasonably required by MA Design; and
(g) obtain and maintain all necessary licences, permissions and consents (if any) which may be required before the date on which the Services are to start.
4.2 The Client shall indemnify MA Design against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content, and further against all damages, losses and expenses arising as a result of any breach by the Client of any of the provisions of clause 4.1.
4.3 The Client authorises MA Design to use all Deliverables for the promotional purposes of MA Design unless specifically otherwise stated.
4.4 If MA Design's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
(a) MA Design shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays MA Design's performance of any of its obligations;
(b) MA Design shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from MA Design's failure or delay to perform any of its obligations as set out in this clause 4.4; and 
(c) the Client shall reimburse MA Design on written demand for any costs or losses sustained or incurred by MA Design arising directly or indirectly from the Client Default.
4.5 The Client shall not, without the prior written consent of MA Design, at any time from the date of this Contract to the expiry of six months after the termination of the Contract, solicit or entice away from MA Design or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of MA Design in the provision of the Services.
4.6 Any consent given by MA Design in accordance with clause 4.5 shall be subject to the Client paying to MA Design a sum equivalent to 20% of the then current annual remuneration of MA Design’s employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Client to that employee, consultant or subcontractor.

5. CHARGES AND PAYMENT

5.1 The Charges for the Services shall be as set out in the Order.  Where the Client asks MA Design to provide any additional services which are not set out in the Order, such services shall be charged to the Client at an additional price, to be agreed in writing with MA Design at the relevant time.
5.2 Unless otherwise agreed in writing by MA Design or otherwise set out in the Order, MA Design shall invoice the Client:
(a) for 50% of the Charges on the Commencement Date;
(b) in the case of Web Design Services for the remaining 50% of the Charges when the relevant webpages have been constructed in accordance with the Specification and prior to such pages going live on the internet;
(c) in the case of any other Service for the remaining 50% of the Charges on receipt by the Client of the relevant Deliverables;
(d) in the case of Integrated Marketing Services, Web Maintenance and Web Hosting Services, monthly in advance in respect of the Services to be provided during the calendar month in question;
provided always that where the total amount to be invoiced to the Client under the Contract is less than £300, MA Design shall invoice the Client for the full amount on the Commencement Date.
5.3 The Client shall pay each invoice submitted by MA Design:
(a) within 14 days of the date of the invoice; and
(b) in full, in pounds sterling and in cleared funds to a bank account nominated in writing by MA Design, and
time for payment shall be of the essence of the Contract.
5.4 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT).  Where any taxable supply for VAT purposes is made under the Contract by MA Design to the Client, the Client shall, on receipt of a valid VAT invoice from MA Design, pay to MA Design such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services. 
5.5 If the Client fails to make any payment due to MA Design under the Contract by the due date for payment, then the Client shall pay interest on the overdue amount at the rate of 4% per cent per annum above Santander UK plc'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.  The Client shall pay the interest together with the overdue amount.
5.6 The Client 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).  MA Design may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by MA Design to the Client.

6. INTELLECTUAL PROPERTY RIGHTS

6.1 All Intellectual Property Rights in or arising out of or in connection with the Services, the MA Design Website, the Deliverables and the Pre-Existing Materials shall be owned by MA Design.
6.2 All Intellectual Property Rights in Third Party Products shall be owned by their respective owners.
6.3 All Intellectual Property Rights in any website (or part of a website) created by MA Design (including in the content of such a website and any software for the website commissioned by the Client but excluding the Pre-Existing Work, the Deliverables, the Third Party Products, and any other third party Intellectual Property Rights) arising in connection with the Contract shall be the property of the Customer and MA Design hereby assigns such Intellectual Property Rights to the Client with full title guarantee and free from all encumbrances and rights of third parties. 
6.4 The Client acknowledges that, in respect of any Third Party Products, the Client's use of them is subject to the relevant licensor's standard terms.
6.5 The Client acknowledges that, in respect of any other third party Intellectual Property Rights, the Client's use of any such Intellectual Property Rights is conditional on MA Design obtaining a written licence from the relevant licensor on such terms as will entitle MA Design to license such rights to the Client.
6.6 The Client warrants and represents to MA Design that the Materials are owned by the Client, or where such Materials are owned by a third party, that the Client has the necessary permission from the third party to use and permit MA Design to use the relevant Materials.  The Client shall indemnify MA Design against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party.

7. 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 7 shall survive termination of the Contract.

8. LIMITATION OF LIABILITY: THE CLIENT'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

8.1 Nothing in these Conditions shall limit or exclude MA Design's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or where relevant, section 12 of the Sale of Goods Act 1979.
8.2 Subject to clause 8.1:
(a) MA Design shall under no circumstances whatever be liable to the Client, 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
(b) MA Design's total liability to the Client 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 100% of the Charges paid or payable by Client in the 12 months preceding the claim.
8.3 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. 
8.4 This clause 8 shall survive termination of the Contract.

9. TERMINATION
9.1 Without limiting its other rights or remedies:
(a) the Client may terminate the Contract by giving MA Design three months' written notice, provided that the Client may not exercise its right to terminate under this clause 9.1 during the period of three months starting on the Commencement Date; and
(b) MA Design may terminate the Contract at any time by giving three months’ written notice to the Client.
9.2 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:
(a) 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 14 days of that party being notified in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.2(b) to clause 9.2(i) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; 
(l) the other party's financial position deteriorates to such an extent that in MA Design's opinion the Client's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(m) 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.
9.3 Without limiting its other rights or remedies, MA Design may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within seven days after being notified in writing to do so. 
9.4 Without limiting its other rights or remedies, MA Design may suspend provision of the Services under the Contract or any other contract between the Client and MA Design if the Client becomes subject to any of the events listed in clause 9.2(b)) to clause 9.2(m), or MA Design reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.

10. CONSEQUENCES OF TERMINATION

On termination of the Contract for any reason: 
(a) the Client shall immediately pay to MA Design all of MA Design's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, MA Design shall submit an invoice, which shall be payable by the Client immediately on receipt; 
(b) the Client shall return any Deliverables which have not been fully paid for. If the Client fails to do so, then MA Design may enter the Client's premises and take possession of them.  Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) 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
(d) clauses which expressly or by implication survive termination shall continue in full force and effect.

11. FORCE MAJEURE

11.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of MA Design including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of MA Design 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. 
11.2 MA Design shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
11.3 If the Force Majeure Event prevents MA Design from providing any of the Services for more than 12 weeks, MA Design shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.

12. GENERAL

12.1 Assignment and other dealings.
(a) MA Design may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Client shall not, without the prior written consent of MA Design, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.

12.2 Notices.

(a) 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.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

12.3 Severance.

(a) 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.
(b) 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.
12.4 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. 
12.5 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.
12.6 Third parties.  A person who is not a party to the Contract shall not have any rights to enforce its terms.
12.7 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 MA Design.
12.8 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.
12.9 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).



 

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