Last Updated: 29th July 2014
In these conditions:
"Agreement" means the contract for the provision by us of the Services to you;
"Innovations" means all inventions, improvements, innovations of any kind made, conceived, designed, developed or reduced to practice by us in the course of providing the Services;
"Intellectual Property Rights" means all patents, copyright, trade marks, service marks, design rights, registered designs (and all applications for the same), and all other intellectual property rights throughout the world;
"Purchase Order" means a written order for the provision of Services by us to you;
"Services" means the provision of artistic or graphic design, software or website development, media or marketing planning consultancy or other services specified in the Purchase Order;
"we", "us" and "our" relate to Acknowledgement Limited (and includes where relevant any contractors or other personnel working for us);
"Working Day" means 9.00am to 6.00pm Monday to Friday, in each case excluding public and bank holidays in England (and, if applicable, in the place where the Services are to be performed);
"you" and "your" relate to the person or company named in the Purchase Order.
2.1 The Agreement will come into effect upon acceptance by us of a Purchase Order from you.
Our proposals are only valid for a period of 30 days from their date of issue and Purchase Orders citing out-of-date proposals will not be accepted. The agreement will continue until completion of the Services or earlier termination as specified in these conditions.
Where we agree to provide any of the Services at your premises it is a condition of the Agreement that you will provide us with safe access and suitable working conditions. We may also require additional facilities to carry out the Services such as (without limitation) equipment, electricity and access to telephones and reasonable office space. Where the Services involve work upon or access to your hardware or network infrastructure, we will require direct access or a suitable facility for remote access via the Internet to your network (or some other form of connection acceptable to us).
Save where expressly agreed in writing to the contrary, the provision of the Services by us will be subject to an advance payment equal to 50% of the sum specified in the Purchase Order. Where the Services are of an open-ended nature, such as a time and materials contract or a project for which a final budget or scope has not been agreed at the date of the Purchase Order, the provision of the Services by us will be subject to an advance payment of an amount equal to 50% of our reasonable estimate of the likely costs for the first two months of the relevant project.
Subsequent payments will be due to us from you monthly in arrears in accordance with our invoiced charges for work carried out during each month. Invoices will be due for payment 30 days from the date of each invoice, subject to any express payment terms set out in the proposal specified in the Purchase Order.
We will be entitled to charge reasonable expenses on a daily basis for all of our employees engaged in providing the Services (subject to any express provisions relating to expenses set out in the proposal specified in the Purchase Order). All payments will be in Pounds Sterling (GBP).
If you are late in making any payment we may charge you interest from the date upon which you should have paid until the day upon which you actually pay. Interest will be charged at the rate of 4% over the annual base rate quoted by National Westminster Bank plc from time to time. If you are late in making any payments to us we may also suspend the provision of the Services (under the Agreement or any other contract between us) until payment is made. We reserve the right to require payments in advance if we reasonably consider that you are persistently late in making payment to us.
Subject to receipt by us of full payment for the Services, you will be entitled to have a non-exclusive, non-transferable licence of any Intellectual Property Rights owned by us relating to the Services, including without limitation Intellectual Property Rights owned by us in all Innovations, and all object code written for you by us or on our behalf. Such licence will entitle you to use for the purposes of your business any works created by us for you in the course of providing the Services. The licence will entitle you to modify any such program code solely for the purpose of maintenance and support. The licence will not extend to source code and will not entitle you to sub-licence, distribute or disclose any such works (whether for payment or otherwise) without our express written agreement.
Until such time as we have received full payment from you for the Services, your rights to use any of our Intellectual Property Rights relating to the Services will be limited to a non-commercial, non-transferable licence which may be terminated, suspended or varied by us at any time immediately upon delivery to you of a notice to that effect.
In the case of software (including without limitation HTML code or similar) we may choose to make use of elements of third party code or software. Unless otherwise expressly stated by us, any such software utilised by us may be subject to third party licensing terms or requirements and will either be sub-licensed to you by us or available to you under the terms of any applicable public licence.
We will own all Innovations, and will be entitled to exploit in any manner at our discretion all Innovations. In the event that you acquire any rights to the Innovations by the operation of any law, you will not dispose of, or otherwise exploit any such rights, but will assign them to us, together with all associated rights related to them, and complete (at our request and expense) any deeds and documents which are required to effect such assignment.
You will pay us for any loss, damage or injury caused to us or our employees by your actions and the actions of your employees and contractors. You will indemnify us for any loss or damage suffered by us as a result of any breach by you of the licences (and, if applicable, sub-licences) referred to in clause 3.3 above.
We will provide to you the Services and such additional services as we and you may agree. All members of our staff assigned to the Services will be entitled to at least one half-hour break per Working Day. If you change your hardware or software requirements or request us to provide additional or different services or to modify the functional or technical specification which we have agreed for the Services, and we agree to such request, we may need to supply additional equipment or personnel. We will require reasonable notice of any such change or request and will be entitled to make additional charges for any additional work and materials not included in the proposal specified in the Purchase Order.
Time shall not be of the essence in relation to the provision by us of the Services. All delivery dates or milestones referred to in the Purchase Order or any other document shall be treated solely as estimates unless expressly agreed in writing to the contrary by our Managing Director.
If we make an error in the provision of Services, or the Services do not comply with the functional or technical specification agreed by us, we will use all reasonable endeavours to rectify that error as soon as is reasonably practicable. Such rectification work will be carried out without charge to you.
Where the Services include the provision of any proprietary software or bespoke alterations to existing software our obligation to correct errors or bugs contained within such any program code supplied to you by us shall be limited to a period of 90 days from the date that such code is delivered to you. If you require additional support for errors or bugs in code supplied by us, annual software support and maintenance terms will be provided by us on request. Unless otherwise specified in the Purchase Order, an additional charge may be made by us if you require technical or user training or guidance documentation relating to the Services.
We are not responsible for any errors (in the provision of the Services or otherwise) caused by incorrect information provided by you or your contractors. We are not responsible for any failure by you or your employees or contractors to follow procedures recommended by us, nor for any changes made by you or your contractors to any works (including, without limitation, any program code) supplied by us, nor for any failure arising from the use by you of unsuitable or incompatible materials, equipment or software.
Where we provide any goods or third party software or services to you in connection with the Services, we will endeavour to pass to you to the benefit of all warranties or guarantees provided by the manufacturers or distributors from whom we purchase such goods or software or services, and will at your request and expense use all reasonable endeavours to assist you to seek to enforce the terms of those warranties and guarantees. We do not accept liability for any representations made regarding such goods or software or services (other than fraudulent or reckless misrepresentations made by us), and all liability for any conditions and warranties (express or implied) relating to such goods or software or services are hereby excluded (but only to the extent that such liability can lawfully be excluded).
Risk in goods passes upon delivery, but title to goods does not pass to you until we have been paid in full, in cleared funds, for all sums due under the Agreement and all sums due from you under any other agreement between us from time to time.
We may bring the Agreement to an end immediately if you fail to comply with your obligations under the Agreement within seven days of having been notified by us of the relevant failure or failures. We may also bring the Agreement to an end immediately if you are the subject of a petition for a bankruptcy order, or you become insolvent or enter into any composition, scheme or arrangement with your creditors. If you are a corporation or other legal person, we may bring the Agreement to an end immediately if any receiver (including an administrative receiver) is appointed over any of your assets or an application is made to appoint an administrator for you. If you are a partnership, we may bring the Agreement to an end immediately if the partnership is dissolved. We may also terminate the Agreement immediately if any other proceedings are commenced in any country relating to your insolvency.
If the Agreement ends for any reason, we will be entitled to remove all of our property from your premises (including all goods title to which has not passed to you). You will also remain liable (i) to pay us for any work which we have done to the date of termination and any unpaid sums which are due to us from you; and (ii) for any other breaches of the Agreement by you.
We are liable for any death or personal injury resulting from our negligence or the negligence of our employees or agents acting in the course of their employment. In relation to defects in goods sold to you by us, we may also be liable under the Sales of Goods Act 1979, the Consumer Protection Act 1987 or equivalent legislation, but only to the extent that such liability cannot lawfully be excluded.
Apart from our agreement to rectify any defects or errors in the Services as set out in paragraph 4.2 above:
(a) our maximum liability to you for direct loss or damage, arising either under the Agreement or from any act or omission, including negligence, will not exceed either the amount payable to us by you under the Agreement (as set out in the proposal specified in the Purchase Order) or the sum of £100,000 (whichever is the lower); and
(b) we will not be liable to you under any circumstances for any indirect or consequential losses (including for example, but without limitation, loss of data or loss of profits).
The limitations and exclusions in this paragraph 4.5 apply to any claim, whether in contract, tort (including negligence) breach of any statutory duty or implied term or any other claim, except any liability for death, personal injury or defects in goods supplied to you by us which cannot by law be limited or excluded.
The limitations and exclusions in this condition reflect the value of the Agreement to us and are considered to be reasonable. If you require us to accept greater liability we may be prepared to do so subject to agreement of an additional payment by you to reflect the increased risk and cost of insurance to us.
We require you to indemnify us for any liability arising from the use, reproduction, publication or storage of any material supplied by any person (other than us) upon or in any web site operated by you or on your behalf.
We shall not be liable to you for any failure to perform our obligations under the Agreement where that failure results from any cause outside our reasonable control, including but not limited to natural occurrences, disruption of power supplies, the actions of third parties or industrial action.
If any of our employees are unable to provide the Services due to illness we will endeavour to provide adequate replacement personnel wherever practicable. If we are unable to provide suitable replacements during any illness we will not be deemed to be in breach of the Agreement and you will only be entitled to terminate the Agreement if such illness results in a delay in the provision of the Services of more than one month. After that period you may choose to terminate the Agreement by written notice to us but only whilst such delay continues and without any right to receive compensation or damages from us following such termination.
5.1 Any dispute which we cannot settle amicably relating to the nature or quality of the Services will be referred to an expert to be agreed; if we and you cannot agree the choice of expert within 14 days of an expert being proposed by you or us then such dispute will be referred to mediation in accordance with the Centre for Dispute Resolution (CEDR) Model Mediation Procedure ("the Model Procedure"). To initiate a mediation a party (by its Managing Director or equivalent senior executive) must give notice in writing ("an ADR notice") to the other party (addressed to its Managing Director or equivalent senior executive) requesting mediation, copied to CEDR. The mediation will start not later than 28 days after the date of the ADR notice. Neither party may terminate the mediation until each party has made its opening presentation and the mediator has met each party separately for at least one hour. Thereafter paragraph 14 of the Model procedure shall apply.
Any other dispute will be determined by reference to the Courts of England (or, at our option, if you are based outside the United Kingdom, the Courts of the country in which you are domiciled) and you irrevocably submit to the jurisdiction of such courts.
6.1 You acknowledge that it is legitimate for us to protect our business against "poaching" of staff by clients, and you therefore agree as a condition of the Agreement that you will not actively solicit, employ or otherwise retain the services of any member of our staff who are engaged in the provision of the Services for the duration of the provision of the Services and for a further period of 12 months from the date upon which the Services are completed.
6.2 You and we shall each keep and procure to be kept secret and confidential all secret and confidential information belonging to each other disclosed as a result of the Agreement and shall not use or disclose the same save for the purposes envisaged by the Agreement.
6.3 The obligations of confidentiality in this Clause 6 shall not extend to any matter which is in or becomes part of the public domain otherwise than by reason of a breach of confidentiality by the person who receives any information or which that person can show to have been in its written records prior to the date of disclosure under the Agreement or which it receives from a third party independently entitled to disclose it. The obligations of confidentiality shall not apply insofar as disclosure is required by any competent court, tribunal or authority (including the rules of any recognised stock exchange).
Unless indicated otherwise, all sums payable under the Agreement are stated exclusive of Value Added Tax and all other applicable sales or use tax or duty chargeable under any relevant legislation, all of which shall be charged at the appropriate rate prevailing at the relevant tax point.
You will not assign your rights under the Agreement without our express written approval. We may sub-contract the provision of certain of the Services at our discretion.
Any notice to be given by us or you must be in writing and may be delivered by facsimile transmission but not by email. Any notice which is served by facsimile must be confirmed by post to be effective. Notices to us should be sent to us at the address stated on the proposal specified in the Purchase Order. Any notice given to you must be sent to you at the address stated on the Purchase Order. We and you are free to provide an alternative address for notices at any time. Facsimile notices will be assumed to have been delivered on the next Working Day after transmission, and postal notices will be assumed to be delivered two Working days after posting.
Any express or implied waiver by us of any failure to perform your obligations under or breach of the Agreement will not prevent the subsequent enforcement of those obligations or the Agreement. Similarly, any waiver will not be taken to be a waiver of any subsequent failure by you to perform that or any other obligation.
The Agreement constitutes the entire agreement between you and us relating to the Services and overrides any prior correspondence or statements relating to the Services (including, without limitation, any statements or representations in any advertisements or literature produced by us relating to the Services, and any terms or conditions or purchase which you may use, even if they are specified or referred to in the Purchase Order).
If any provision of the Agreement is ruled to be invalid for any reason, that invalidity will not affect the rest of the Agreement which will remain valid and enforceable in all respects.
The Agreement is governed by English law.