Service Terms and Conditions of Contract
This Contract is between:
(1) MADHOUSE MEDIA LTD, of 9a Lumley Court, Drum Industrial Estate,
Chester le Street, County Durham, DH2 1AN registered in England under No. 11356598 (“the Company”); and
(2) “The Client”
Whereas:
(1) The Company is a fully integrated marketing agency providing various elements of the marketing mix (“the Service”).
(2) The Client wishes to use the Service and by accepting a Proposal or making use of the Services or making payment of an invoice to use the Services supplied acknowledges that they have read, understood and agreed to these Terms and Conditions to the exclusion of all others.
It is agreed as follows:
1 Definitions and Interpretation
In this Contract, unless the context otherwise requires, the following expressions have the following meanings:
“Account” means the details of the Client that are required and held by the Company to facilitate the provision of the Service to the Client including, but not limited to, identification and location details, payment details, username and password, and details of the Service provided to the Client;
“Business Day” means a day (that is not a Saturday or Sunday) on which banks are open for business in the UK.
“Contract” means an accepted Proposal and these Terms and Conditions;
“Fee” means the sum payable by the Client to the Company in order to receive the Service;
“Software” means all software used by the Company in the provision of the Service;
“Intellectual Property” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, Services marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world as at the date of the Contract or in the future.
“Order” means an order placed by the Client with the Company for the provision of the Service;
“Proposal” a separate document giving details of the Services to be provided by the Company to the Client and their mutual obligations.
2 Fees and Payment
2.1 Fees for the Service offered by the Company are as quoted in the Proposal. All charges payable by the Client shall be in accordance with the information quoted.
2.2 The Client is required to pay all fees due strictly in accordance with the proposal.
2.3 All fees payable by the Client to the Company shall be paid in full, without set off or deduction.
2.4 Methods of payment may include BACS or cash. Payment by cheque, Paypal or other shall be subject to an administration charge.
2.5 Clause 2.4 notwithstanding, the Company reserves the right to charge the Client any fees encountered as a result of such payments.
2.6 Any outstanding invoices over 60days late will result in full account suspension of all services.
2.7 Returned cheques will incur an additional fee of £50.00 +VAT per returned cheque. The Company reserves the right to consider an account to be overdue in the event of a returned cheque.
2.8 The Company reserves the right to claim statutory interest at 8% above the Bank of England reference rate in force on the date the debt becomes overdue and at any subsequent rate where the reference rate changes and the debt remains unpaid 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 Entire Agreement and Variation
3.1 The Contract constitutes the entire agreement between the parties. It supersedes and extinguishes any previous agreements, promises, assurances, warranties, representations and understandings between them, whether orally or in writing, relating to the subject matter.
3.2 Any variation to the Contract must be agreed by both Parties and communicated accordingly where such agreement shall not be unreasonably withheld.
3.3 The order of precedence of the Contract documentation is:
3.3.1 The Proposal;
3.3.2 The General Terms and Conditions.
4 Client Undertakings and Obligations
4.1 The Client will use its best endeavours to supply all information required to facilitate the provision of the Service to the Company in a timely fashion.
5 Intellectual Property and Proprietary Rights
5.1 The Client will not acquire ownership rights over any of the Company’s Intellectual Property in or in relation to the Service or in relation to any other property owned by the Company.
5.2 The Company will not acquire ownership rights over any of the Client’s Intellectual Property or any other material belonging to the Client. In consideration of the Fees and Payment paid in full by the Client to the Company, the Company grants to the Client a non-exclusive licence to use the Service.
5.3 5.2 Notwithstanding, the Company reserves the right to use any artwork, ideas, sketches, prototypes and drafts created as part of the Service as examples of client work.
5.4 The Client agrees to fully indemnify the Company against all costs, expenses, liabilities, losses, damages, claims and judgements that the Company may incur or be subject to as a result of the infringement of any Intellectual Property infringement owned by third parties arising from:
5.4.1 The Client’s failure to obtain the necessary rights and permissions from third parties in order to enable the Company to legally provide the Service;
5.4.2 The provision of the Service by the Company based upon information and material provided by the Client.
6 Liability
6.1 The Company shall not be liable to the Client or to third parties for:
6.1.1 Any losses resulting from interruptions or downtime to the Service;
6.1.2 Any inability, on the part of the Client, to use the Service;
6.1.3 Any damage or loss resulting from the loss of confidentiality caused by the storage of information on the internet.
6.2 Nothing in this Clause shall exclude the liability of the Company for death or personal injury resulting from the Company’s negligence or that of its employees or agents.
7 Warranties and Disclaimer
7.1 Subject to the provisions of this Contract, the Company gives no warranty, express or implied, in connection with the Service as to fitness for purpose, quality, non-infringement or merchantability.
7.2 Both Parties and the signatories to the Contract warrant that they are authorised and permitted to enter into the Contract, and have obtained all necessary permissions and approvals.
7.3 Both parties warrant and undertake that they are not aware as at the date of the Contract of anything within their reasonable control which might or will adversely affect their ability to fulfil the obligations under the Contract.
8 Indemnities and Limitation of Liability
8.1 The Client will fully indemnify the Company against all costs, expenses, liabilities, losses, damages and judgements that the Company may incur or be subject to as a result of any of the following:
8.1.1 The Client’s breach of this Contract;
8.1.2 The Client’s negligence or other act of default;
8.2 Neither party shall be liable to the other under this Contract in contract, tort, or otherwise (including negligence), pre-contract or other representations (other than fraudulent or negligent misrepresentations) or otherwise for any loss of business, contracts, profits or anticipated savings or for any indirect or consequential or loss whatsoever.
8.3 The Client agrees to indemnify the Company against any claims, damages, losses, costs and expenses which the Company may sustain or incur in relation to any content and materials which the Client provides, such indemnity applying in respect of any claims for any breach of applicable law or regulation or any infringement of any intellectual property rights.
8.4 The Company agrees to indemnify the Client against any claims, damages, losses, costs and expenses which the Client may sustain or incur in relation to breaches of the Confidentiality and Intellectual Property Rights clauses of this Contract committed knowingly by the Company.
8.5 Nothing in this Contract shall exclude or limit liability for death or personal injury resulting from the negligence of either party or their servants, agents or employees
9 Force Majeure
9.1 Neither the Company nor the Client shall be liable for breaching this Contract where that breach results from Force Majeure.
9.2 Force Majeure refers to any event that is beyond the reasonable control of the parties and includes, but is not limited to, acts of God; acts of war; national emergencies; governmental action; union action; civil unrest; fire; explosion; flood and theft.
10 Term and Termination
10.1 The Service will be provided strictly in accordance with the Proposal.
10.2 Either party may terminate this Contract immediately in the event that:
10.2.1 Either party commits a serious, grave or material breach or persistent breaches of this Contract including non-performance, default or neglect of its duties, responsibilities and obligations under this Contract, and
10.2.2 Such breach remains unremedied for a period of 30 days from written notice given by the other party specifying the breach and requiring its remedy; or
10.2.3 Such breach is not capable of remedy.
10.3 The Company reserves the right to terminate this Contract at any point with one months notice at the Company’s discretion, or The Company reserves the right to terminate this Contract or to suspend the Service in the following circumstances:
10.3.1 If the Client fails to pay fees due under the Fees and Payment Clause of this Contract;
10.3.2 If the Client is in breach of the terms of this Contract;
10.3.3 If the Client becomes the subject of a voluntary arrangement under Section 1 of the Insolvency Act 1986;
10.3.4 If the Client is unable to pay its debts within the definition of Section 123 of the Insolvency Act 1986; or
10.3.5 If the Client has a receiver, manager, administrator or administrative receiver appointed over all or a substantial part of its undertakings, assets, or income; has passed a resolution for its winding up; or is the subject of a petition presented to a court for its winding up or for an administration order.
10.4 Upon termination of this Contract the following shall become immediately due:
10.4.1 Any and all outstanding invoices;
10.4.2 Any costs accrued up to the termination date not already subject to invoice;
10.4.3 Any costs incurred by the Company upon termination of the contract.
11 SUBSCRIPTION TERMS
11.1 Any monthly subscription contract requires a full 30 days notice of cancellation. If any invoices have already been issued on subscription terms within the 30 days cancellation notice period, they are still payable as per our subscription terms.
11.2 Any website and email hosting transfers to another provider will incur a £50+vat transfer fee, at any stage of the subscription.
11.3 All artwork, websites and IT equipment remain the property of Madhouse Media Ltd until full payment is received for all outstanding invoices on our system.
12 Assignment
12.1 The Company reserves the right to assign or otherwise transfer any rights or obligations under this Contract.
12.2 The Client may not assign or transfer any of its rights or obligations under this Contract without the prior written consent of the Company.
13 Severance
13.1 In the event that any provision of this Contract is found to be invalid or otherwise unenforceable for any reason, the remaining provisions shall continue in full force without being impaired or invalidated in any way.
13.2 The waiver by either party of any provision of this Contract will not operate or be interpreted as a waiver of any other provision or a subsequent breach of any provision.
14 Confidentiality
14.1 Both parties shall keep in strict confidence all information which are of a confidential nature and have been disclosed by one party to the other party and shall procure that the receiving party’s employees, agents, consultants or subcontractors keep in strict confidence all such information other than for the purposes of performing its obligations under this Contract.
15 Notice
15.1 Any notice given by either of the parties under this Contract shall be served on the other party and addressed to that party’s signatory by email, personal delivery, pre-paid recorded delivery or first-class post to the receiving party.
15.2 Any such notice shall be deemed to be effectively served as follows:
15.3 In the case of service by pre-paid recorded delivery or first-class post 48 hours after posting;
15.4 In the case of service by email on the next working day
15.5 All subscription contracts require a full 30 days notice of cancellation. If any invoices have already been issued on subscription terms within the 30days cancellation notice period, they are still payable as per our subscription terms.
16 Joint Venture or Partnership
16.1 Nothing in this Contract shall be construed as creating a partnership, joint venture or an agency relationship between the parties and neither party shall have the authority or power to bind the other party or to contract in the name of or create a liability against the other party.
17 General
17.1 It is hereby declared that the foregoing paragraphs, sub-paragraphs and clauses of this Contract shall be read and construed independently of each other.
17.2 Should any part of this Contract or its paragraphs, sub-paragraphs or clauses be found invalid it shall not affect the remaining paragraphs, sub-paragraphs and clauses.
17.3 No addition to or modification of any clause in this Contract shall be binding on the parties unless made by a written instrument and signed by the signatories to this Contract or their duly authorised representatives.
17.4 This Contract sets out the entire contract and understanding of the parties and is in substitution of any previous written or oral Contracts between the parties.
18 Jurisdiction
18.1 This Contract shall be interpreted construed and enforced in accordance with the laws of England and Wales.
18.2 The parties irrevocably agree to submit to the exclusive jurisdiction of the courts of England over any claim or matter arising under or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
19 Mediation
19.1 If at any time any question, dispute or difference whatsoever shall arise as to the formation, meaning, operation, validity or effect of the Contract or the rights, duties or liabilities of the parties under or by virtue of it or otherwise or any other matter in any way connected with or arising out of the subject matter of the Contract, either party may give to the other notice in writing of the existence of such question, dispute or difference and the same shall be referred to a mutually agreed Third Party Mediator within 14 days of such notice.
20 Arbitration
20.1 If an attempt at Mediation as in Clause 18 should fail then the dispute or difference shall be referred to the arbitration of a single arbitrator to be agreed upon by the parties within 14 days of the failure of such an attempt, or in default of such Contract, to be nominated by the President for the time being of the Law Society of England and Wales such arbitration to be conducted in accordance with the Arbitration Act 1996.
21 Headings
21.1 The headings in these Terms and Conditions are for convenience only and are not intended to have any legal effect.
22 Third Party Rights
22.1 A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.