Terms & Conditions – Bourne Digital
1. INTERPRETATION
1.1 In these Conditions:
‘BRIEF’ means the written brief overleaf describing the Services, the Design and Concept Work, the Quotation and any pre-set timings for supply of the Services.
‘CLIENT’ means the person, firm or company described overleaf.
‘CONTRACT’ means the contract consisting of the Conditions and the Brief and concluded by either the Client signing overleaf and returning it to BD or BD starting work on the Services.
‘DESIGN AND CONCEPT WORK’ means the preparation, research, designs and development undertaken by BD including sketches, projects, development, production drawings, models, and any other matters.
‘QUOTATION’ means the fee to be charged by BD for the Services which is contained within the Brief and is subject to the provisions of clause 4 of the Conditions.
‘SERVICES’ means the Design and Concept Work which BD is to supply in accordance with these Conditions and the Brief full particulars of which appear overleaf.
‘BD’ means Bourne Digital, of Bourne Digital 61 Carlton Road, Worksop, S80 1PP.
‘CONDITIONS’ means the standard terms and conditions set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Client and BD.
‘WRITING’ includes telex, cable, e-mail, facsimile transmission and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. BASIS OF SUPPLY
2.1 BD shall supply and the Client shall purchase the Services in accordance with the Brief which is subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Client and BD.
2.3 BD ‘s employees or agents are not authorised to make any representations concerning the Services unless confirmed by BD in Writing. In entering into the Contract the Client acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.4 Any advice or recommendation given by BD or its employees or agents to the Client or its employees or agents in connection with the Services which is not confirmed in Writing by BD is followed or acted upon entirely at the Client’s own risk, and accordingly BD shall not be liable for any such advice or recommendation which is not so confirmed.
3. ORDER AND SPECIFICATIONS
3.1 No order submitted by the Client shall be deemed to be accepted by BD unless and until confirmed in Writing by BD‘s authorised representative.
3.2 The Client shall be responsible to BD for ensuring the accuracy of the terms of any order submitted by the Client, and for giving BD any necessary information relating to the Services within a sufficient time to enable BD to perform the Contract in accordance with its terms.
3.3 No order which has been accepted by BD may be cancelled by the Client except with the agreement in Writing of BD and on terms that the Client shall indemnify BD in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by BD as a result of cancellation.
4. PRICE OF THE SERVICES
4.1 All Quotations are valid for 30 days only or until earlier acceptance by the Client, after which time they may be altered by BD without giving notice to the Client.
4.2 BD reserves the right, by giving notice to the Client at any time before performance of the Contract, to increase the Quotation for the provision of the Services to reflect any increase in the cost to BD which is due to any factor beyond the control of BD (such as, without limitation, significant increase in the costs of materials), any change in performance dates, quantities or specification for the Services which is requested by the Client, or any delay caused by any instructions of the Client or failure of the Client to give BD adequate information or instructions.
4.3 The price is exclusive of any applicable Value Added Tax, which the Client shall be additionally liable to pay to BD.
5. TERMS OF PAYMENT
5.1 Subject to any special terms agreed in writing, BD shall invoice the Client for the Services upon completion of the Services.
5.2 The Client shall pay the price quoted & invoiced for the provision of the Services upon completion and issue of the invoice, notwithstanding that the property of the Design and Concept Work has not passed to the Client. The time of payment shall be of the essence. Receipts for payment will be issued only upon request.
5.3 If the Client fails to make any payment on the due date then, without prejudice to any other right or remedy available to BD, BD shall be entitled to:-
5.3.1 cancel the contract or suspend any further Services to the Client;
5.3.2 appropriate any payment made by the Client to such of the Services (or the Services supplied under any other contract between the Client and BD) as BD may think fit (notwithstanding any purported appropriation by the Client); and
5.3.3 charge the Client interest (both before and after any judgement) on the amount unpaid, at the rate of 8 per cent above the base rate over the Bank of England base rate, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
6. PERFORMANCE
6.1 BD shall perform the Services in accordance with the Brief. Any dates quoted for performance of the Services are approximate only and BD shall not be liable for any delay in performing of the Services howsoever caused. Time for performing shall not be of the essence. The Services may be performed by BD in advance of the quoted performance date upon giving reasonable notice to the Client.
6.2 Where the Services are to be performed in instalments, each performance shall constitute a separate contract and failure by BD to perform any one or more of the instalments in accordance with these Conditions or any claim by the Client in respect of any one or more instalments shall not entitle the Client to treat the Contract as a whole as repudiated.
6.3 If BD fails to perform the Services for any reason other than any cause beyond BD’s reasonable control or the Client’s fault, and BD is accordingly liable to the Client, BD’s liability shall be limited to the excess (if any) of the cost to the Client (in the cheapest available market) of similar Services to replace those not performed over the price of the Services.
6.4 If the Client fails to permit performance of the Services or fails to give BD adequate instructions at the time stated for performance (otherwise than by reason of any cause beyond the Client’s reasonable control or by reason of BD’s fault) then, without prejudice to any other right or remedy available to BD, BD may claim the price of the Contract less the direct costs of performing the Services.
7. COPYRIGHT
7.1 Notwithstanding performance of the Services, or any other provision of these Conditions, the copyright in the Design and Concept Work supplied under this Contract shall not pass to the Client until BD has received in cash or cleared funds payment in full of the fee for the Services and all other Services agreed to be sold by BD to the Client for which payment is then due.
7.2 Until such time as the copyright in the Design and Concept Work passes to the Client, the Client shall hold the Design and Concept Work as BD ‘s fiduciary agent and bailee and shall not publish disseminate or exploit the Design and Concept Work in any way whatsoever.
7.3 Until such time as the copyright in the Design and Concept Work passes to the Client, BD shall be entitled at any time to require the Client to deliver up the Design and Concept Work to BD and, if the Client fails to do so forthwith, to enter upon any premises of the Client or any third party where the Design and Concept Work is stored and repossess the same.
8. WARRANTIES
8.1 Subject to the conditions set out below BD warrants that the services will be performed using reasonable skill care and diligence.
8.2 The above warranty is given by BD subject to the following conditions:-
8.2.1 BD shall be under no liability in respect of any defect in the Services arising from any drawing, design or specification supplied by the Client;
8.2.2 BD shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, or failure to follow BD’s instructions (whether oral or in writing);
8.2.3 BD shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Services has not been paid by the due date for payment
8.2.4 the above warranty does not extend to materials not manufactured by BD, in respect of which the Client shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to BD.
8.3 Subject as expressly provided in these Conditions, and except where the Services are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Any claim by the Client which is based on any defect in the quality of the Services or their failure to correspond with specification shall (whether or not performance is refused by the Client) be notified to BD in writing within 7 days from the date of performance or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If performance is not refused, and the Client does not notify BD accordingly, the Client shall not be entitled to reject the Services and BD shall have no liability for such defect or failure, and the Client shall be bound to pay the price as if the Services had been performed in accordance with the Contract.
8.4 Where any valid claim in respect of any of the Services which is based on any defect in the quality or condition of the Services or their failure to meet specification is notified to BD in accordance with these Conditions, BD shall be entitled to replace the Services (or the part in question) free of charge or, at BD’s sole discretion, refund to the Client the price of the Services (or a proportionate part of the price) but BD shall have no further liability to the Client.
8.5 Except in respect of death or personal injury caused by BD ‘s negligence, BD shall not be liable to the Client by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by negligence of BD, its employees or agents or otherwise) which arise out of or in connection with the supply of the Services or their use or resale by the Client, except as expressly provided in these Conditions.
8.6 BD shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of BD ‘s obligations in relation to the Services, if the delay or failure was due to any cause beyond BD’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond BD’s reasonable control:-
8.6.1 Act of God, explosion, flood, tempest, fire or accident;
8.6.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.6.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.6.4 import or export regulations or embargoes;
8.6.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of BD or of a third party);
8.6.6 difficulties in obtaining materials, labour, fuel, parts or machinery;
8.6.7 power failure or breakdown in machinery
9. INDEMNITY
9.1 If any claim is made against the Client that the Services infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, BD shall indemnify the Client against all loss, damages, costs and expenses awarded against or incurred by the Client in connection with the claim, or paid or agreed to be paid by the Client in settlement of the claim, provided that:-
9.1.1 BD is given full control of any proceedings or negotiations in connection with any such claim;
9.1.2 the Client shall give BD all reasonable assistance for the purposes of any such proceedings or negotiations;
9.1.3 except pursuant to a final award, the Client shall not pay or accept any such claim, or compromise any such proceedings without the consent of BD (which shall not be unreasonably withheld)
9.1.4 the Client shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Client may have in relation to such infringement, and this indemnity shall not apply to the extent that the Client recovers any sums under any such policy or cover (which the Client shall use its best endeavours to do);
9.1.5 BD shall be entitled to the benefit of, and the Client shall accordingly account to BD for, all damages and costs (if any) awarded in favour of the Client which are payable by or agreed with the consent of the Client (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and
9.1.6 without prejudice to any duty of the Client at common law, BD shall be entitled to require the Client to take such steps as BD may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which BD is liable to indemnify the Client under this clause.
10. INSOLVENCY OF CLIENT
10.1 This clause applies if:-
10.1.1 the Client makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Client; or
10.1.3 the Client ceases, or threatens to cease, to carry on business; or
10.1.4 BD reasonably apprehends that any of the events mentioned above is about to occur in relation to the Client and notifies the Client accordingly
10.2 If this clause applies then, without prejudice to any other right or remedy available to BD, BD shall be entitled to cancel the Contract or suspend any further performance under the Contract without any liability to the Client, and if the Services have been performed but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary
11. GENERAL
11.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
11.2 No waiver by BD of any breach of the Contract by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
11.4 Any dispute arising under or in connection with these Conditions or the sale of the Services shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President for the time being of The Law Society.
11.5 The Contract shall be governed by the Laws of England.