Bang Anderson Limited Terms of Business for design & marketing services including website development.
These conditions shall govern all contracts between Bang Anderson Limited at 2 Ian House, Tolehurst, Frittenden, Kent. TN17 2BW (registered in England Company Number 6335466) (‘THE CONSULTANCY”) and “the Client” unless varied in writing. These conditions shall exist in addition to any rights implied in law.
1.1 In this Agreement the following words and expressions shall have the following meanings:
1.1.1 “supporting materials” means any text, image, source code, document, ISP information or any other item required in the provision of the Services;
1.1.2 “intellectual property rights” means patents, trade-marks, design rights, applications for any of the foregoing, copyright, topography rights, database rights, rights in know-how, trade or business names and other similar rights or obligations, whether registrable or not in any country;
1.1.3 “The Consultancy” means Bang Anderson Limited
1.1.4 “ISP” stands for internet service provider;
1.1.5 “server” means the computer server equipment operated by BANG ANDERSON LTD in connection with the provision of the Services;
1.1.6 “the Services” means visual design, development of source code, maintenance and any other services or facilities provided by Bang Anderson Ltd.
1.1.7 “brief” means clear written instructions and technical specification;
1.1.8 “virus” means a computer programme that copies itself or is copied to other storage media, including without limitation magnetic tape cassettes, memory chips, electronic cartridges, optical discs and magnetic discs, and destroys, alters or corrupts data, causes damage to the user’s files or creates a nuisance or annoyance to the user and includes without limitation computer programs commonly referred to as “worms” or “trojan horses”;
1.2 Product specifications and details may be found at www.banganderson.co.uk
1.3 Words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders.
1.4 The headings of the paragraphs of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
2 INTRODUCTION & PROJECT SCOPE
2.1 The Customer wishes to provide BANG ANDERSON LTD with a full brief and supporting materials to facilitate the provision of services to an agreed cost and payment terms.
2.2 The Consultancy provides design work, web development and marketing expertise. The scope of our work will be limited to the matters set out in the letter of engagement which incorporates these standard terms and conditions.
2.3 The client agree to appoint us as your sole design and marketing consultant and our advice will be prepared from our work solely for your use and solely for the purpose of assisting you with the marketing activities. No other party is entitled to rely on our advice for any purpose whatsoever and we accept no responsibility towards any person who is not a party to these terms of engagement.
2.4 Our advice will be based on the information received from you. You agree to make sure that we are given all information that may have an impact on our advice, including informing us immediately of any circumstances which may alter the position.
2.5 Whilst we may in the course of the engagement provide advice to you on matters relevant to a decision by you whether to take a particular course of action, including whether to proceed with the marketing strategy or not to proceed, responsibility for the ultimate decision on whether to take that course of action shall rest solely with you.
2.6 Throughout the Project the Client shall be solely responsible for providing the Consultancy with all necessary information concerning the Project and the Client’s requirements and the Consultancy shall not responsible for any shortcomings in such information.
2.7 The client accepts that its knowledge and experience in relation to the Project is vital to its implementation of any design or web development work.
2.8 The Client shall be liable for all costs and expenses incurred as a result of any failure by the Client to provide full or proper instructions, or as a result of the Client changing its requirements.
2.9 Contractual relations between the Consultancy and its Clients will come into existence where the terms of the contract are recorded in writing or email instruction.
3 DELIVERIES AND DUTIES
3.1 The delivery times of the products and services stated by the Consultancy are only estimates and the Consultancy has no responsibility for delay, unless it is directly attributable to the fault of the Consultancy.
3.2 The Client accepts that any failure on its part to provide full instructions may cause delay.
3.3 BANG ANDERSON LTD shall provide to the Customer the Services specified in their order/quotation subject to the following terms and conditions.
3.4 The Customer shall deliver to BANG ANDERSON LTD a full brief and supporting materials used in the project/s which is owned by the Customer, or licensed to him by a third party or BANG ANDERSON LTD (“the Customer Software), in a format specified by BANG ANDERSON LTD
4 CHARGES AND PAYMENT
4.1 All estimates from the Consultancy are given in good faith, and save to the extent that the estimate includes the supply of printed material and the cost of paper increases after the estimate has been given (in which case the Consultancy reserves the right to pass on such increased costs to the Client) estimates will remain extant for 14 days.
4.2 VAT will be charged where applicable at the current rate.
4.3 50% of the contract price is payable at the commencement of the Consultancy Service with the balance of the contract price, including any additional items/services agreed during the intervening time 30 days after delivery of the product. Unless otherwise agreed in writing.
4.4 Payment in full of any invoice must be made within 30 days of the date of the invoice.
4.5 We require that our reasonable out-of-pocket expenses (plus VAT) will be payable monthly in arrears. These will include all travel undertaken during the engagement, and such other costs as are incurred on behalf of you, our clients.
4.6 The Client will be notified in advance where the Service includes work undertaken on an hourly charge basis or otherwise agreed.
4.7 The Consultancy will charge at its current rate for additional work necessitated by reason of an author’s corrections to delivered proofs or web development, to include any alterations in style.
4.8 Without prejudice to its other remedies the Consultancy reserves the right to exercise a lien on all goods and property in its possession belonging to a Client in the event that any fees are due to it from that Client.
4.9 Payments to be made by BACS (Bank Transfers)
4.10 BANG ANDERSON LTD shall be entitled to charge interest in respect of late payment of any sum due under this Agreement, which shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 8% per annum above the base rate of the Bank of England from time to time in force.
4.11 BANG ANDERSON LTD do not provide credit facilities.
4.12 Payment terms as per written prior agreement/quotation or as stated on invoice.
4.13 From time to time BANG ANDERSON LTD may make enquiries on the Customers company, proprietor or directors of the Customers company with credit reference agencies. These agencies may record that a search has been made and share this information with other businesses.
4.14 Pro-rata refunds will not be issued for yearly services (such as website hosting) that are cancelled before then end of the year.
5 SOFTWARE LICENCE AND RIGHTS
5.1 If the Customer requires use of software owned by or licensed to BANG ANDERSON LTD (“BANG ANDERSON LTD’s software”) in order to use the Services, BANG ANDERSON LTD grants to the Customer and its employees, agents and third party consultants and contractors, a royalty-free, world-wide, non-transferable, non-exclusive licence to use BANG ANDERSON LTD Software in object code form only, in accordance with the terms of this Agreement. For the avoidance of doubt, this Agreement does not transfer or grant to the Customer any right, title, interest or intellectual property rights in BANG ANDERSON LTD Software.
5.2 In relation to BANG ANDERSON LTD’s obligations under this Agreement in connection with the provision of the Services, the Customer grants to BANG ANDERSON LTD a royalty-free, world-wide, non-exclusive licence to use the Customer Software and all text, graphics, logos, photographs, images, moving images, sound, illustrations and other material and related documentation featured, displayed or used in or in relation to the website (“the Content”). For the avoidance of doubt, this Agreement does not transfer or grant to BANG ANDERSON LTD any right, title, interest or intellectual property rights in the Customer Software or the Content.
5.3 The Customer undertakes that he will not himself or through any third party, sell, lease, license or sublicense BANG ANDERSON LTD Software.
5.4 BANG ANDERSON LTD may make such copies of the Customer Content as may be necessary to perform its obligations under this Agreement, including backup copies of the Content. Upon termination or expiration of this Agreement, BANG ANDERSON LTD shall destroy all such copies of the Content and other materials provided by the Customer as and when requested by the Customer.
6 SERVICE LEVELS AND DATA BACKUP
6.1 BANG ANDERSON LTD shall use its reasonable endeavours to make the Services available to the Customer 100% of the time during office hours but because the Services are provided by means of computer and telecommunications systems, BANG ANDERSON LTD makes no warranties or representations that the Service will be uninterrupted or error-free and BANG ANDERSON LTD shall not, in any event, be liable for interruptions of Service and related delays in the provision thereof.
6.2 BANG ANDERSON LTD carries out data backups for use by BANG ANDERSON LTD in the event of systems failure. BANG ANDERSON LTD do not provide data restoration facilities for individual customers. Even though every effort is made to ensure data is backed up correctly BANG ANDERSON LTD accepts no responsibility for data loss or corruption.
7 ALTERATIONS AND UPDATES
7.1 Websites. All alterations and updates to websites shall be made using the online account management facility, FTP access or SSH access where available. The Customer will need to provide the user name and password for their ISP services in order for BANG ANDERSON LTD to access their account. The Customer must take all reasonable steps to maintain the confidentiality of this user name and password. If the Customer reasonably believes that this information has become known to any unauthorised person, the Customer agrees to immediately change their password and inform BANG ANDERSON LTD of the new details.
8.1 The Customer warrants and represents to BANG ANDERSON LTD that BANG ANDERSON LTD’s use of the supporting materials or the Customer Software in accordance with this Agreement will not infringe the intellectual property rights of any third party and that the Customer has the authority to license the Content and the Customer Software to BANG ANDERSON LTD as set out in Clause 5.2.
8.2 All conditions, terms, representations and warranties that are not expressly stated in this Agreement, whether oral or in writing or whether imposed by statute or operation of law or otherwise, including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded. In particular and without prejudice to that generality, BANG ANDERSON LTD shall not be liable to the Customer as a result of any viruses introduced or passed on to the Customer.
The Customer agrees to indemnify and hold BANG ANDERSON LTD and its employees and agents harmless from and against all liabilities, legal fees, damages, losses, costs and other expenses in relation to any claims or actions brought against BANG ANDERSON LTD arising out of any breach by the Customer of the terms of this Agreement or other liabilities arising out of or relating to the Project materials or Website.
10 LIMITATION OF LIABILITY
10.1 Nothing in these terms and conditions shall exclude or limit BANG ANDERSON LTD’s liability for death or personal injury resulting from BANG ANDERSON LTD’s negligence or that of its employees, agents or sub-contractors.
10.2 The entire liability of BANG ANDERSON LTD to the Customer in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the charges paid for the Services under this Agreement in respect of which the breach has arisen.
10.3 In no event shall BANG ANDERSON LTD be liable to the Customer 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 BANG ANDERSON LTD had been made aware of the possibility of the Customer incurring such a loss.
10.4 The Consultancy shall only be liable for contractual damages arising from any defect in the Service or breach of the contract or general law up to the contract price.
10.5 The Consultancy shall not be responsible for the default of any third party, sub-contractor, manufacturer or supplier.
10.6 The Consultancy shall not be responsible for any failure caused by events beyond its reasonable control including force majeure.
10.7 Issues arising from damage, delay or partial loss of goods in transit must be made in writing to the Consultancy within 3 days of delivery and claims for non-delivery must be made within 48 hours of the date upon which the Client has been notified to expect delivery of goods.
10.8 The Consultancy accepts no liability of any kind for indirect or consequential losses of the Client or any third parties occasioned by delay in completing the work or for any loss arising from delay in transit.
10.9 The Consultancy’s sole liability in relation to any defect with the product provided to a Client as part of the Services shall be limited to rectifying the defect.
10.10 All deliveries from the Consultancy are conditional upon the Client’s acceptance of a margin of 5% in respect of quantity and 10% in respect of colour for printed items.
11 TERM AND TERMINATION
11.1 This Agreement will become effective on the date the service is ordered and shall continue until terminated by either party in writing of its intention to terminate the Agreement.
11.2 BANG ANDERSON LTD shall have the right to terminate this Agreement with immediate effect by notice in writing to the Customer if the Customer fails to make any payment when it becomes due.
11.3 Either party may terminate this Agreement forthwith by notice in writing to the other if:
11.3.1 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 a reasonable time of being given written notice from the other party to do so; or
11.3.2 the other party commits a material breach of this Agreement which cannot be remedied under any circumstances; or
11.3.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; or
11.3.4 the other party ceases to carry on its business or substantially the whole of its business; or
11.3.5 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.
11.4 Any rights to terminate this Agreement shall be without prejudice to any other accrued rights and liabilities of the parties arising in any way out of this Agreement as at the date of termination.
11.5 On termination all data held in the customers account will be deleted.
12.1 BANG ANDERSON LTD may assign or otherwise transfer this Agreement at any time.
12.2 The Customer may not assign or otherwise transfer this Agreement or any part of it without BANG ANDERSON LTD’s prior written consent.
13 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, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, the act or omission of any Internet Service Provider, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.
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 hereof shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
15 NOTICES AND CANCELLATIONS
15.1 Any notice to be given by either party to the other may be sent by either email or recorded delivery to the address of the other party as appearing in this Agreement or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by recorded delivery shall be deemed to be served 2 days following the date of posting.
15.2 Client may by notice in writing, email or telephone cancel a contract with the Consultancy for the provision of services, but if cancelled within the period stated below, then the following fees are chargeable:- Within 6 to 8 weeks of the delivery date: 25% of the contract price. Within 4 to 6 weeks of the delivery date: 50% of the contract price. Less than 4 weeks of the delivery date: 100% of the contract price
15.3 In the event of notice of cancellation being given more than 8 weeks before the delivery date (as originally specified or subsequently agreed) then the Client shall pay to the Consultancy a reasonable charge (determined by reference to the current hourly rate of the Consultancy and the time that has been spent on the Project) for the provision of its Services prior to the date of cancellation together with all disbursements incurred prior to cancellation or booked and not being capable of cancellation.
15.4 Client’s Right of Suspension / Cancellation, verbal or written for marketing retainer. Client may by notice in writing, email or telephone cancel a contract with the Consultancy for the provision of marketing services after an initial period of 12 months. In the event of notice of cancellation being given a notice period of 3 paid months is required.
16 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. This Agreement may be updated without notice.
17 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.
18 SCRIPTING AND RANKING FOR WEBSITES
18.1 BANG ANDERSON LTD are not responsible for customer programming issues for scripts other than those written by BANG ANDERSON LTD. If programming issues have occurred due to additional work carried out by the Customer or another 3rd party, time taken to resolve the issue will be billable.
18.2 The Consultancy cannot guarantee the “ranking’ or position of the website in search engine results. It is recommended that the website is considered part of the marketing mix. However, the Consultancy will build the website to current search engine best practice and design guidelines. On completion the website address will be submitted to the major search engines.
19 PRIVACY AND CONFIDENTIALITY
19.1 To protect your privacy we will not distribute your details to third parties, unless required to do so by law.
19.2 Each party shall owe to the other a duty to preserve the confidential information of the other (being information of a confidential nature not in the public domain and the disclosure or mis-use of which would foreseeably damage the goodwill, business or reputation of the other).
19.3 In the event that the Client shall have specific commercially sensitive information then it shall so inform the Consultancy who will comply with the Client’s reasonable requirements in this regard.
20 INTELLECTUAL PROPERTY AND STANDING MATTER
20.1 The copyright/design right in all the Consultancy’s designs shall belong to Bang Anderson Limited and upon payment of all invoices the Client is hereby granted an exclusive licence to such designs for the purpose of the Project only (subject to any usage rights stipulated by illustrators, photographers and other third parties).
20.2 All the content supplied by the Client or content written by the Consultancy on behalf of the Client during the project shall remain the Intellectual property of the Client. See Standing Matter and Website Specific clauses.
20.3 The Consultancy’s moral rights are hereby asserted.
20.4 The Consultancy shall be under no liability to the Client for any actions, costs, claims or demands suffered in respect of any infringement of any intellectual property of any third party save insofar as such infringement is due to the negligence of the Consultancy.
20.5 The Consultancy shall have the reasonable right to publicise its involvement in the Project.
20.6 The ideas and design concepts put forward by the Consultancy as part of the Project shall be the confidential know-how of the Consultancy and the Client shall not seek to use such ideas for any purpose other than the Project and the Client shall keep such confidential know-how secret and shall not disclose it to any third party nor use it for any purpose other than the Project for a period of 5 years.
20.7 All risk in goods supplied as part of the Service shall pass to the Client on delivery (or where appropriate 48 hours after clients have been notified that their goods are ready for collection).
20.8 Ownership of all goods supplied as part of the Project shall remain vested in the Consultancy until such time as the Client shall have paid to the Consultancy the full contract price.
20.9 Until payment, the Client shall be bailee of any such goods and in the event of the Client becoming bankrupt, or going into liquidation or receivership then the Client’s rights to possession shall forthwith cease and the Consultancy shall have the right to enter upon the Client’s premises to repossess any such goods.
20.10 All files created during a Project and all stored digital images and artwork remain the Consultancy’s exclusive property and unless a client has requested and agreed a charge for storage of such material then it may be destroyed or deleted 6 weeks after the completion of the Project.
20.12 All materials belonging to a Client provided to the Consultancy during the course of a Project must be collected upon request or if later within a period of 6 weeks from the completion of the Project in relation to which such material was supplied.
20.13 All customers’ property supplied to the Consultancy in connection with the Project is held by the Consultancy and will be worked on as necessary in connection with the Project at the Clients risk. Clients are advised to ensure that they retain copies of any valuable materials or otherwise provided to the Consultancy during the course of any Project.
20.14 Copyright responsibility. By agreeing to work with The Consultancy you agree to indemnify us against any copyright issues relating to all the content you supply to us. By content we mean product samples, photographs, text, images, logos, audio and video. Please ensure you only supply content which you have the legal right to use or that you have obtained the copyright owner’s express permission to use.
The client will not offer employment to any THE CONSULTANCY Director or member of staff or induce or solicit any such person to take up employment with the client; nor will the client use the services of any such person, either independently or via a third party, for a period of six months following the end of any involvement by that person with any engagement for the client. Breach of this condition will render the client liable to pay THE CONSULTANCY liquidated damages equal to one year’s salary for the person concerned.
We seek to ensure that our service is satisfactory at all times our Directors will be responsible for this. If at any time you are dissatisfied with our service please let us know by the Bang Anderson Directors. We undertake to look into any complaint promptly and to do what we can to resolve the position.
22 WEBSITE DESIGN AND DEVELOPMENT
22.1 After launch any major updates, extra features, structural changes or redesigns will be discussed in advance and a fixed price quotation provided if necessary. However, any technical errors on the part of the Consultancy will always be remedied as soon as is reasonably possible.
22.2 Data Backup: We will maintain regular backups of the website files and database to enable us to restore the website in the case of unexpected data loss for the first year. This backup is intended as a disaster recovery and is not a tool to recover lost or accidentally deleted content. The end user should copy and save important content before editing using the CMS. Restoring a backup up will incur an additional cost.
22.3 Upon launch the Client will be supplied a full backup disk of the website content. Thereafter the Client retains the right at any time to request a complete set of data, access codes and information required to transfer the management of the site to a third party without cause (subject to the legal requirements of other parties eg hosting, software vendors). These will be supplied as soon as is reasonably possible without penalty as long as all current invoices and/or outstanding costs have been paid. The Consultancy will invoice £55+vat per hour to cover the administration time plus the cost of materials, postage and packing if required. The Consultancy cannot guarantee that the website will operate correctly on any other web server.
22.4 Search Engines: The Consultancy cannot guarantee the “ranking’ or position of the website in search engine results. It is recommended that the website is considered part of the marketing mix. However, the Consultancy will build the website to current search engine best practice and design guidelines. On completion the website address will be submitted to the major search engines.
22.5 Hosting. The Consultancy will host the host for the Client for the agreed annual fee at the agreed usage limits. See our hosting T&Cs.
23 EMAIL NEWSLETTER
BANG ANDERSON LTD communicates with its customers via email and as such you agree to receive by email our newsletter which contains amongst other things changes to our terms and conditions, notification of major outages, updates to our products & features and special offers.
24.1 The contract shall be subject to English law and to the non-exclusive jurisdiction of the English Courts.
24.2 The appropriate County Court jurisdiction shall be the Maidstone 90 County Court.