1. DEFINITIONS

In this document the following words shall have the following meanings:

1.1       “Agreement” means these Terms and Conditions together with the terms of any applicable proposal or estimate;

1.2        “Client” (also “customer” and “you”) means the individual or entity purchasing services from Andy Wasley, in addition to that individual’s or entity’s employees, sub-contractors and agents;

1.3        “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable;

1.4        “Proposal” means a statement of work, quotation or other similar document describing the services to be provided by the Supplier;

1.5        “Supplier” (also “I” and “me”) means Andy Wasley, of 3 Oak Walk, Wallington SM6 7DE; and

1.6        “Work Location(s)” means any place(s) where the Client requires the Supplier to work as part of the project, excluding any workplace used solely at the Supplier’s own discretion.

2. GENERAL

2.1        Scope. These Terms and Conditions shall apply to all contracts for the supply of services by the Supplier to the Client.

2.2        Proposal or estimate. Before commencing work, the Supplier shall submit to the Client a proposal or estimate which will specify the services to be performed and the fees payable. Where fees are identified as estimates, including by the inclusion of a tilde symbol (~) immediately preceding the fee, the final charge is subject to variation. The Client shall notify the Supplier immediately if the Client does not agree with the contents of the proposal or estimate. The proposal or estimate shall be subject to these full Terms and Conditions. Services shall commence once the Supplier receives email confirmation and/or signed acceptance of these terms and that the proposal or estimate is accepted and agreed.

2.3        Reasonable endeavours to meet timeframe. The Supplier shall use all reasonable endeavours to complete the services within timeframes estimated.

3. FEES AND PAYMENT

3.1        Provided in proposal. The fees for the performance of the services and payment schedule are as set out in the proposal or estimate. Where mentioned in the proposal, a Working Day comprises the hours 09.00 to 17.00, inclusive of a one-hour break.

3.2        Purchase orders. In the event that the Client’s procedures require that an invoice be submitted against a purchase order for payment, the Client shall be responsible for issuing such purchase order before the commencement of the services. The Client agrees that this entire Section shall still apply in the event of any failure to obtain a purchase order, and any late payment shall incur interest and charges as set out in Clause 3.3 below.

3.3        Late payment. The Supplier asserts his right to charge statutory interest and statutory fixed fees on unpaid invoices, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended), and supplemented by the Late Payment of Commercial Debts Regulations 2002.

3.4        Advances. The Supplier may ask the Client to pay a percentage of the project fee in advance of commencement of the work, with a further percentage or percentages at one or more mutually agreed stages of the project.

3.5        Fee to be incurred in full at outset. Once work on the services has started, the fee agreed between the parties for the full project is deemed to be incurred unless the parties have agreed payment milestones in the service specification. The Client has no right to withhold or reduce payment based on the Client’s critical response to, or appraisal of, the services as submitted by the Supplier.

3.6        Amendments subject to charges. Unless otherwise agreed in writing between the parties, revisions or amendments to creative works created by the Supplier for the Client will be chargeable at £50 per hour, each hour being chargeable in full after five minutes’ work, and the Client agrees that any such fees shall be payable in accordance with this Section.

3.7       Cancellation or termination. In the event of cancellation or unlawful termination of this Agreement by the Client for any reason, other than a failure to agree on alterations to the proposal or estimate covered in Section 6 below, the provisions of Clause 10.2 will apply, and the Supplier shall submit his final invoice for immediate payment, thereby cancelling the provision for payment within 30 days.

3.8        Early upload to websites. If the Client uploads the creative works provided by the Supplier to any website before the Supplier has invoiced for the final work product, the Supplier asserts his right to invoice the Client in full for the agreed amount outstanding, even if the Client requires revisions (as agreed within the proposal) to be made.

3.9        Travel expenses. The Supplier asserts his right to charge the Client a flat rate for motor mileage to and from his home to the Work Location(s) at 45p per mile, plus absolute costs for travel by rail, air or sea, road or bridge tolls, parking, luggage fees (including customs) and cab fares.

4. CLIENT’S OBLIGATIONS

4.1        Cooperation. To enable the Supplier to perform his obligations under this Agreement the Client shall:

4.1.1  Cooperate with the Supplier;

4.1.2  Provide any information reasonably required by the Supplier;

4.1.3  Obtain all necessary permissions and consents which may be required before the commencement of the services;

4.1.4  Comply with such other requirements as may be set out in the proposal or estimate; and

4.1.5  Provide the Client’s registered company address (if a registered company) or a residential address as per current electoral roll (if a sole trader).

4.2        Expenses for failure to cooperate. The Client shall be liable to compensate the Supplier for any reasonable expenses he incurs as a result of the Client’s failure to comply with Clause 4.1.

4.3        To absolve Supplier for work amended or not used. In the event that the Client does not make use of any work produced by the Supplier in accordance with the proposal or estimate, or if the Client amends or revises the work before using it in any website or collateral, the Client agrees to absolve the Supplier of all responsibility for any loss of income or for any costs or damages suffered by the Client or by any third party as a result of any delay which has been caused to the Client’s business or to the business of any third party.

4.4        Website copy. If the Client has appointed the Supplier to write website copy and decides not to make final copy revisions until the Client can see how the copy looks online once uploaded by the Client’s web designer, the Supplier asserts his right to charge for the project in full less 10% of final payment as soon as he has submitted the latest draft.

4.5        Failure to communicate. Should the Client for any reason fail to maintain communication with the Supplier with regards to a project which the Client has contracted, the Supplier will issue an invoice for payment as per the parties’ agreed and signed terms. The Supplier will consider failure to maintain communication as a period of 21 days in which the Supplier does not hear from the Client, despite sending the Client at least one email to an address through which the parties have previously communicated successfully and from which the email does not bounce. Three days will be allowed for the last email to be responded to. It is the Client’s obligation to ensure they maintain communication through the project duration.

5. SUPPLIER’S OBLIGATIONS

5.1        Work in accordance with proposal. The Supplier shall provide the services in accordance with the provisions of the proposal or estimate. If, when the Client sees a draft, the Client is dissatisfied with any work the Supplier has produced for the Client, the Supplier will do his best to resolve the Client’s concerns, but without prejudice to the Supplier’s rights in this Agreement. Unless expressly agreed in writing between the Parties before work commences, the Client shall not be entitled to reject final creative works on the basis of style or composition.

5.2        Inability to meet obligations. In the event that the Client or any third party, not being a subcontractor of the Supplier’s, shall omit or commit any act that prevents or delays the Supplier from undertaking or complying with any of his obligations under this Agreement, then the Supplier shall notify the Client as soon as possible and:

5.2.1  The Supplier shall have no liability in respect of any delay to the completion of any project;

5.2.2  If applicable, the time scale for the project will be modified accordingly; and

5.2.3  The Supplier shall notify the Client at the same time if the Supplier intends to make any claim for additional costs.

5.3        Errors. The Supplier will make every effort to make sure creative works are free of errors. However, the Client bears sole responsibility for checking for errors, and the Client absolves the Supplier of responsibility for any costs incurred as a result of the appearance of any errors in the final published form of any collateral in which the Client uses the creative works, whether or not those errors appeared in any drafts or final versions provided by the Supplier.

6. ALTERATIONS TO PROPOSAL OR ESTIMATE

6.1        New proposals. The parties may at any time mutually agree upon execute a new project proposal. Any alterations in the scope of services to be provided under this Agreement shall be set out which shall reflect the changed services and fees and any other terms agreed between the parties.

6.2        Requests for alterations to proposal. The Client may at any time request alterations to the proposal by notice in writing to the Supplier. On receipt of the request for alterations, the Supplier shall, within five working days or such other period as may be agreed between the parties, advise the Client by notice in writing of the effect of such alterations, if any, on the fees and any other terms already agreed between the parties.

6.3        Variation of terms. Where the Supplier gives written notice to the Client agreeing to perform any alteration on terms different to those already agreed between the parties, the Client shall, within five working days of receipt of such notice or such other period as may be agreed between the parties, advised the Supplier by notice in writing whether or not the Client wishes the alterations to proceed.

6.4        Amendment to estimated fees. If alterations are agreed, the fees estimate will be amended accordingly. If the Client does not wish to proceed, this Agreement will then terminate and the Supplier will submit a final invoice for all work carried out up to that point, payable in accordance with Section 3 above.

7. WARRANTY

The Supplier warrants that the services performed under this Agreement shall be performed using reasonable skill and care, and of a quality conforming to generally accepted industry standards and practises.

8. INDEMNIFICATION

The Client shall indemnify the Supplier against all claims costs and expenses which the Supplier may occur and which arise, directly or indirectly, from the Client’s breach of any of their obligations under this Agreement, including any claims brought against the Supplier alleging that any services provided by the Supplier in accordance with the proposal infringe a patent, Copyright or trade secret or other similar rights of a third party.

9. LIMITATION OF LIABILITY

9.1        Supplier’s liability limited to fees. Except in respect of death or personal injury due to negligence, for which no limit applies, the Supplier’s entire liability to the Client in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the fees paid by the Client to which the claim relates.

9.2        Client loss of business or consequential damages. In no event shall the Supplier be liable to the Client for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or the Supplier had been made aware of the possibility of the Client’s incurring such a loss.

9.3        Death or injury. Nothing in these Terms and Conditions shall exclude or limit the Supplier’s liability for death or personal injury resulting from his negligence or that of his employees, agents or subcontractors.

10. TERMINATION OF SERVICES

10.1     Justification. Either party may terminate this Agreement forthwith by notice in writing to the other if:

10.1.1  The other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within 14 calendar days of being given written notice from the other party to do so;

10.1.2  The other party commits a material breach of this Agreement which cannot be remedied under any circumstances;

10.1.3  The other party passes a resolution for winding up (other than for the purposes of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;

10.1.4  The other party ceases to carry on its business or substantially the whole of its business; Or

10.1.5  The other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors, or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.

10.2     Payments after cancellation or termination. Without prejudice to any other rights to which the Supplier may be entitled, in the event that the Client terminates or cancels the services agreed to in the proposal or estimate, the Client shall be required to pay the Supplier (as agreed damages and not as a penalty) the full amount of any third party costs to which the Supplier has committed in the course of his work on the project, and, in respect of cancellations on less than five working days’ written notice, the full amount of the fee set out in the proposal or estimate, and the Client agrees this is a genuine estimate of the Supplier’s losses in such a case. For the avoidance of doubt, the Client’s failure to comply with any obligations under Clause 4.1 shall be deemed to be a cancellation of the services, and subject to the payment of the damages set out in this Clause.

11. INTELLECTUAL PROPERTY RIGHTS

11.1     Copyright to be vested in Supplier. The entire copyright and all similar rights throughout the world in all the creative works, and ownership of all physical and digital materials created by or for the Supplier during work on the project, shall vest in and be retained by the Supplier at all times, and the Client shall do all that is reasonably necessary to ensure that such right is vested in the Supplier by the execution of appropriate instruments or the making of agreements with third parties.

11.2     Client to buy Licence. On settlement of the final invoice, the Supplier will grant a usage Licence to the Client. No Licence shall be deemed to have been issued until the Supplier has received the agreed payment. The Supplier asserts his right to seek any and all legal remedies to protect his intellectual property should it be used in breach of this Agreement.

11.3     Generic Licence terms. Unless otherwise agreed between the parties the Licence shall grant to the Client:

11.3.1  For written copy: perpetual exclusive rights to use the copy provided under this Agreement on the Client’s website and in the Client’s other collateral anywhere worldwide;

11.3.2  For video and photography: exclusive rights to use the content on the Client’s website and in other collateral anywhere worldwide for a period of five years from the date on which the work is submitted to the Client.

11.4     Generic terms extinguished by written agreement. The generic Licence granted in Clause 11.3 will be superseded and extinguished by any Licence subsequently agreed between the parties, subject to payment as detailed in Clause 11.2.

11.5     No sub-license. Unless expressly agreed in writing between the parties, the Client is forbidden to sub-license or sell the creative work, or to provide it to any third party for alteration, editing or use in any format.

11.6     Supplier’s promotional rights. Regardless of any Licence agreement agreed herein or subsequently between the parties the Supplier permanently retains the right to use extracts of any work produced for the Client to support the promotion of the Supplier’s business. No communication will be required between the Client and the Supplier to allow the execution of this right.

11.7     Third-party intellectual property rights. The Supplier will be responsible for securing permission to use any third-party intellectual property included within the creative work, including any creative work. The Client will be responsible for paying any fees to third parties in respect of third-party intellectual property rights, such permission not to be given by the Supplier without a written agreement from the Client.

12. FORCE MAJEURE

Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, accidents, war, acts of terrorism, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, any outbreak of infectious disease, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and each party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events. Any alterations to the proposal or estimate necessary direction necessitated under this section shall be subject to the provisions of Section 6 above.

13. GENERAL

13.1     Independent contractors. The parties are contractors independent of each other and neither party has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. The Supplier may engage subcontractors to provide all or part of the services being provided to the Client, and such engagement shall not relieve the Supplier of his obligations under this Agreement. A contract will only exist between the Client and the Supplier, and not between any client of the Client’s and the Supplier. The Client agrees to indemnify the Supplier against any claim by any client of the Client’s for compensation or damages brought about as a direct or indirect consequence of the use, or inability or unwillingness to use, the material which the Supplier writes.

13.2     Assignment. The Client shall not be entitled to assign rights or obligations or delegate duties under this Agreement without the Supplier’s prior written consent.

13.3     Severability. If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.

13.4     Waiver. The failure by either party to enforce at any time or for any period any one or more of these Terms and Conditions or the proposal or estimate shall not be a waiver of them or of the right at any time subsequently to enforce any provision of this Agreement.

13.5     Notices. Any notice to be given by either party to the other may be served by email, personal service or post to the address of the other party given in the proposal or estimate. If sent by email the notice shall, unless the contrary is proved, be deemed to be received on the day it was sent, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally, or if sent by post shall be deemed to have been delivered in the ordinary course of post.

13.6     Entire agreement. This Agreement contains the entire Agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement full, this Agreement may be varied only by a document signed by both parties.

13.7     No third parties. Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.

13.8     Application of terms. These terms and conditions will:

13.8.1        apply to all Assignments undertaken by the Supplier for the Client and to all Licences or extended and/or additional Licences relating to such Assignments; and

13.8.2        prevail over any inconsistent terms or conditions contained, or referred to, in the Client’s purchase order, confirmation of order, acceptance of Estimate, or specification or other document supplied by Client, or implied by law, trade custom, practice or course of dealing.

13.9     Governing law and jurisdiction. This Agreement shall be governed by and construed in accordance with English law, and the parties hereby submit to the exclusive jurisdiction of the English courts