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Interpretation
1. In these Terms and Conditions, the following words and phrases shall bear the following meanings:
Content means all Materials displayed or used or to be featured, displayed or used in fulfilment of the Contract.
Client Content means the Content provided to the Contractor by the Client.
Client Materials means the Materials provided to the Contractor by the Client.
Contract means the obligations set out in any agreed proposal documents, combined with these terms and conditions.
Contractor means Delphi Creative Limited, its employees and / or subcontractors.
Contractor Materials means Materials provided by the Contractor to the Client.
Confidential information means all business, technical, financial or other information created or exchanged between the parties in the course of the Project.
Client means the individual, company or organisation named in the Contract.
Intellectual Property Rights means any and all patents, trade marks, rights in domain names, rights in designs, copyrights and database rights (whether registered or not and any application to register or rights to apply for registration of any of the foregoing) rights in confidential information and all other intellectual property rights of a similar or corresponding character which may subsist now or in the future in any part of the world.
Materials means any text or graphics or software or data or imagery or model or design or logo or moving image or sound or music or photograph (whether digital or otherwise) or brochure or pamphlet or illustrations or any artwork whatsoever.
Price means the amount due to be paid by the Client to the Contractor as set out in Clause 3 below.
Project means the overall Work and shall include the supply to the Client of any Content, Website Design, Website Pages, domain name, maintenance, training, hosting, or any other goods or services.
Website Design means any graphical, technical and navigational design within the Project
Web Pages means the pages in the website of any Website Design.
Total Price means the Price plus any increase as set out in clause 4 below.
Work means what the Contractor has agreed to perform or the services the contractor has agreed to supply as set out in the Contract.
Supply
2. In consideration of the Client's payment and otherwise subject to the terms of the Contract, on receipt by the Contractor of written acceptance of the Contract, the Contractor will carry out the Project in accordance with the Contract.
Payment
3. The Price of the Work is the full amount including VAT as shown on the supplied invoice.
4. The Contractor reserves the right to increase the Price at any time prior to completion of the Work to reflect any additional cost to the Contractor which is outside its control, or due to any change in completion dates or specification supplied by the Client or the failure of the Client to provide adequate specification or information.
5. Subject to any special terms that may be agreed in writing between the Client and the Contractor, the client agrees to pay to the contractor the Total Price upon the acceptance of the Contract and the provision of an invoice.
6. Time for payment shall be of the essence. If the Contractor does not receive payment of its invoices within twenty eight (28) days of the due date, the Contractor reserves the right to add interest at a rate of 8% per annum and / or may terminate the Contract forthwith.
Specifications
7. The Client shall be responsible for ensuring the accuracy of any specification submitted by the Client, and for supplying any specifications or information or Client Materials relating to the Work with such sufficient time to enable the contractor to complete the Work in accordance with the Contract.
Intellectual Property
8. The Client grants to the Contractor a royalty-free, world-wide, non-exclusive licence to use any Client Materials for the purposes of the Project.
9. In respect of Client Material, the Client shall ensure that any necessary permissions, authorisation, licences or consents are obtained at its own expense prior to the Work being carried out and shall indemnify the Contractor against all loss, damages, costs and expenses awarded against or incurred by the Contractor in connection with any claim arising as a result of the Client's failure to obtain any such permissions.
10. The Client acknowledges and agrees that it holds no copyright or other Intellectual Property Rights in any Materials provided or adapted by the Contractor.
11. Any reproduction, distribution or commercial use of any Contractor Material is not permitted without the prior written agreement of the Contractor.
12. Upon written notice from the Contractor, the Client shall deliver up forthwith all copies of any trial, or proposed, or rejected Contractor Materials provided or adapted by the Contractor.
Confidentiality
13. The Contractor and the Client acknowledge that: a) each may be the owner of Confidential Information; b) in the performance of the Contract, each may receive or become aware of such Confidential Information; c) unauthorised disclosure of any of this Confidential Information could irreparably damage the other.
Identification of Confidential Information
14. Prior to disclosure of any Confidential Information by the Client to the Contractor or by the Contractor to the Client, the disclosing party shall identify the information supplied as Confidential Information. In no event shall Confidential Information include that which: a) is already lawfully known to or independently developed by the receiving party; b) is in the public domain through no fault of the receiving party; c) is lawfully obtained from a third party without restrictions; or d) is required to be disclosed by law, regulation or governmental order.
Non Disclosure
15. Except as directed by the other party, required by law, or provided in this clause, neither party will at any time during the Project or for a period of three (3) years after any termination of the Contract disclose any Confidential Information to any person or entity, or permit any person or entity to examine and/or make copies of any report(s) or any documents prepared by the other party or that come into the party's possession or under the party's control that relate to Confidential Information, and that upon termination of the Contract, both parties will destroy or return to the other all materials that contain or relate to the other party's Confidential Information.
No Warranties Except As Expressed in the Contract
16. Save as expressly set out in the Contract and / or otherwise implied by statute, the Contractor does not make any representations or warranties express or implied regarding the Project. No oral advice or written information given by the Contractor, or its employees, agents, licensors or the like shall create a warranty; nor shall the Client rely on any such information or advice.
Limitation on Liability
17. In the event of the Contractor: a) breaching the Contract; and / or b) committing any breach of contract or tort, including the negligence of its employees or agents, the Contractor will have no liability save that: (i) the Contractor will indemnify in respect of any death or personal injury caused thereby and in respect of which no limitation or exclusion is intended; (ii) the Contractor will indemnity in respect of any fraud on behalf of the Contractor subject to the exclusions and limitations set out in clauses 18 to 20 below.
18. Without prejudice to the generality of clause 17, in no event shall the Contractor be liable for any: a) damage to property whether arising directly or indirectly from any breach or tort; b) loss of profits, increased or extra expenditure, loss of business revenue, loss of goodwill or loss or delay to anticipated savings, whether arising directly or indirectly from any breach or tort; c) consequential loss or damage; d) any indemnity in respect of clause 18 (a) to (c) above.
19. Without prejudice to the generality of clauses 17 and 18, the liability of the Contractor for all the losses caused by the breach or tort giving rise to a claim, shall be limited to damages of a total of twice the Total Price and which the parties have considered and agree is a reasonable sum given the respective positions of the parties and the types of direct losses likely to occur.
20. Notwithstanding clause 17 above, in no circumstances shall the Contractor be liable to pay any damages to the Client for losses arising out of or in any way connected with the provision of information to the Contractor by the Client or the Client's failure to provide information to the Contractor either punctually or at all or any fraudulent act, misrepresentation or wilful default on the Client's part.
Third Parties
21. Nothing in the Contract shall confer on any third party any benefit or the right to enforce any term of the Contract.
Indemnity
22. Except for any wilful misconduct or gross negligence by the Contractor, the Client agrees to indemnify the Contractor to the fullest extent permitted by law against all liabilities, losses, claims, demands and reasonable expenses, including but not limited to legal fees and expenses and internal management time and administrative costs, brought against us by any party or person whatsoever, other than the Client, in connection with or arising out of the Contract.
Acceptance and Termination
23. The Contract will commence upon acceptance of the Contract.
24. The Contractor may immediately terminate this Contract without notice if the Client shall fail to pay the Total Price in accordance with Clause 5.
25. In the event of any material breach of the Contract by the Client other than that envisaged in clause 24, the Contractor may terminate the Contract by giving at least fourteen (14) days prior written notice thereof; provided, however, that this Contract shall not terminate at the end of such period if the Client has cured the material breach.
26. In the event of any other material breach of the Contract by the Contractor, the Client may terminate the Contract by giving at least fourteen (14) days prior written notice thereof; provided, however, that this Contract shall not terminate at the end of such period if the Contractor has cured the material breach.
27. The Client's only right with respect to any dissatisfaction with the creative style of the Work, or any change in the Price (as aforesaid) is to terminate this Contract by giving at least fourteen (14) days notice in writing to the Contractor.
28. For the avoidance of doubt, nothing in clauses 26 and 27 shall prejudice the Contractor's right to payment in accordance with clause 5 and in the event of termination under clauses 24 to 27 above the Client shall become liable to pay the balance of the Total Price forthwith.
29. Save as aforesaid, termination of the Contract for whatever reason shall not affect either:
(i) the accrued rights and liabilities of the parties arising in any way our of the Contract as at the date of termination;
(ii) any provisions expressed to survive this Contract, which shall remain in full force and effect.
Website Links
30. The Client shall allow the Contractor to permanently insert into any website designed within the Project a link to the Contractor's website.
Resale & Assignment
31. Neither the Client nor the Contractor may assign this Contract or any of its rights or obligations hereunder without the prior written consent of the other, and in the absence of such consent, any such attempted assignment shall be void.
Waiver
32. A failure of either party to exercise any right provided for herein shall not be deemed to be a waiver of any right hereunder.
Severability & No Set-off
33. In the event any one or more of the provisions of the Contract or of any attachment is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.
34. The Client shall not be entitled to claim a set-off in respect of any part of the Total Price.
Force Majeure
35. Neither party shall be liable in any amount for failure to perform any obligation under the Contract if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of such party including without limitation fire, flood, war or act of God.
Party Status
36. Neither party to the Contract is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party.
Entire Agreement & Modifications
37. The Contract sets forth the entire agreement of the parties and supersedes any and all prior agreements with respect to the subject matter hereof. Neither party shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in this Contract save for any representation made fraudulently.
Surviving Sections
38. In the event of this Contract being terminated, without prejudice to clause29(i) above, clauses 4, 5, 9, 11, 12, 15, 30 and 34 herein shall survive and the parties agree to continue to be bound by these terms.
Governing Law and Jurisdiction
39. The Contract shall be governed by and interpreted in accordance with English law. The Courts of England and Wales shall have exclusive jurisdiction in relation to any claim, dispute or difference concerning the Contract and any matter arising from it.
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