Terms of Sale.

Application of Terms and Conditions

1. In these terms and conditions “us” or “we” shall mean Brookstone Creative Limited of The Atkins Building, Lower Bond Street, Hinckley, Leics LE10 1QU and “you” shall mean the person or entity named as the client in the Schedule.
2. The following terms and conditions apply to and are incorporated into the contract between us (Contract) to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. You should print or otherwise save a copy of these terms and conditions for your records.
4. The Contract will commence on the date you sign below and will continue until the sooner of the Services being provided and the Contract being terminated pursuant to the clause entitled ‘Termination’ below. If you do not sign below but continue to or proceed to instruct us, you shall be deemed to have agreed to these terms and they shall be duly incorporated into the Contract.
5. We reserve the right to vary these terms and conditions at any time upon notice to you.

Provision of Services

6. We shall provide you with the Services as set out in the accompanying agreement or as agreed in subsequent email correspondence between us. We shall endeavour to meet any timetable or deadlines that have been agreed between us but time shall not be of the essence and you shall not be entitled to terminate this agreement or claim damages or any other remedy if we do not meet such timetable or deadline.
7. Our normal office hours are 8.30am to 5.30pm Monday to Friday (excluding Bank Holidays).
8. If the Services are being provided as part of a retainer, all hours worked in addition to the number of hours included in the retainer will be charged at the standard hourly rate applicable at that time (and not the retainer rate). Any hours included in a retainer not used in one month may be carried over to the next month but must be used in that following month (and if not used will still be charged).
9. All of the time that we spend working on the Services, including without limitation research, administration and communication (whether by telephone, email, fax or otherwise) will be chargeable at the applicable hourly rate or included in the retainer hours (as the case may be).
10. We shall at all time act in accordance with the agreed Specification and, where we are acting for a fixed project fee, will provide an unlimited number of revisions until the deliverables comply with the Specification. Where you require amendments or modifications that are not included in the Specification, we reserve the right to charge our then current hourly rate.
11. We will correct, without any further charge, any errors in any work that we have provided as part of the Services provided that you notify us in writing of the error prior to the date falling [14] days after your receipt of the work.
12. You acknowledge that our ability to provide the Services is dependent upon your full and timely co-operation (which you agree to provide), as well as the accuracy and completeness of any specifications, information and data provided by you and any third party acting on your behalf. Accordingly, you shall provide us with access to, and use of, all information, data and documentation reasonably required by us for the performance of our obligations under this agreement within a reasonable time period of such information, data and/or documentation being requested.
13. We shall provide hosting services through our third party hosting provider at the additional cost set out in the agreement. If we are not providing hosting services, you agree that you will arrange your own hosting services and provide us with all necessary details to enable us to properly provide the Services.
14. We shall upload content for the agreed amount of pages of your website without further charge. After the initial agreed amount of pages, there will be a fee for uploading further content and pages. Where we are not providing hosting services, you shall provide us with all necessary information (including server details) for us to do this.
15. You will ensure that any materials you provide us with do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).
16. You acknowledge that we have no control over any content placed on your website by visitors to your website and that we will not be monitoring the content of your website. We reserve the right to remove content from your website where we reasonably suspect such content is Inappropriate Content. We will notify you if we become aware of any allegation that any content on your website may include any Inappropriate Content.
17. You will reimburse us for any damages, losses and expenses arising as a result of any action or claim that any materials on your website constitute Inappropriate Content.
18. We will include the statement “Designed by Brookstone Creative Ltd” on the home page of your website in the footer.

Charges, expenses and invoicing

19. In consideration of us providing the Services to you, you shall pay to us the charges set out in the Schedule or in the Quotation or as agreed in subsequent email correspondence between us.
20. We reserve the right to charge you a deposit of 50% of the final invoice on account of the charges. The amount paid as a deposit will be deducted from the final invoice.
21. Our minimum charge for any single piece of work shall equate to 60 minutes work at the applicable hourly rate. Our charges for time spent are calculated in one minute units using hourly rates.
22. We shall submit an invoice to you for the charges for the Services and you shall pay each invoice, in full and in cleared funds, within 7 days of the date of the invoice to the bank account specified on the invoice. If you have validly requested an amendment, correction or modification to any work, the invoice to which such work relates shall only be payable within 7 days of our delivery of the amended, corrected or modified work.
23. If the Services are being provided as part of a retainer, payment for each month is due monthly in advance and invoices will be delivered accordingly. Otherwise, we shall invoice you as soon as practicable after the last day of each month.
24. All charges are stated exclusive of VAT that shall be added to the charges at the applicable rate (where necessary).
25. Without prejudice to any other right or remedy, if you fail to pay the invoice on the due date, we may charge interest on the sum from the due date for payment at the annual rate of 8% above the Bank of England base rate, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and you shall pay the interest immediately on demand. We are also entitled by law to compensation for our costs in pursuing any late payment.
26. In the event of late payment, we reserve the right to suspend the Services immediately and without notice to you.
27. We reserve the right to change our charges upon 30 days’ notice to you.
28. Where you (or your employees or any third party acting on your behalf) amend or modify any document(s) or material(s) that we have provided to you, we reserve the right to charge for our time spent in correcting, reformatting, amending or modifying any such document(s) or material(s).
29. You shall reimburse us for all hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by us in providing the Services [and approved in advance by you]. These expenses shall be detailed in your invoice and we may invoice you for such expenses at such times as we think appropriate.
30. All bulk orders of stationery, printing and any other materials, overseas telephone calls, other extraordinary administrative costs and all postage costs reasonably incurred by us as part of the provision of the Services will be invoiced at cost in addition to our stated charges.
31. The one-off licence fee for any third party software products or stock images is not included in the Charges payable and shall be chargeable at cost, except where stated otherwise in the Quotation or the Specification.
32. Once we have commenced work on an assignment or project, you may cancel such assign- ment or project by notifying us in writing. If you cancel such an assignment or project, we will invoice you for all work carried out up until our written notice of the cancellation. In addition, if we have not taken on work from other clients in order to carry out the work for you, we reserve the right to charge you the balance of the charges that would have been payable for that particular project or assignment.

Force majeure

33. If we are prevented from or delayed in performing our obligations by your act, delay or omis- sion (or of your agents, subcontractors, consultants or employees) or by any circumstance outside of our control, we shall not be liable for any costs, charges or losses sustained or incurred by you that arise directly or indirectly from such prevention or delay.

Intellectual Property

34. As between us and you, all Intellectual Property Rights and all other rights in any materials provided by us shall be owned by us. We license all such rights to you on a non-exclusive basis only to such extent as is necessary to enable you to make reasonable use of the Services.
35. You grant to us a worldwide, royalty-free, non-exclusive licence to use any materials provided by you solely for the purposes of our engagement.
36. You shall indemnify us and keep us indemnified on demand on a pound for pound basis against all damages, losses, expenses and costs (including reasonable professional costs) arising as a result of any action or claim that the materials on your website infringe any intellectual property rights of a third party or infringe any applicable laws, regulations or third party rights.
37. Any third party software products shall be supplied to you in accordance with the relevant licensor’s standard terms.

Confidentiality, non-solicitation and data protection

38. You shall keep in strict confidence all know-how, processes or initiatives that are of a confidential nature concerning our business. We will keep confidential all information disclosed by you or your employees in relation to the provision of the Services.
39. Notwithstanding clause 38, we will be entitled to disclose confidential information relating to or belonging to you if agreed in advance with you or to (i) to our insurers, (ii) to our auditors and other professional advisers appointed from time to time, (iii) to any employee, consultant or any person to whom we subcontract any of the Services and (iv) to any other party to the extent required by law or regulation or a regulatory authority, provided that such persons, where legally permitted, have an obligation to keep such information strictly confidential.
40. You agree that you will not (in any capacity), during our appointment and for a period of 12 months following termination of the appointment, employ, contract with or enter into any other arrangement with any person who is or was in the 12 months prior to the termination of the appointment, our employee or contractor in relation to the provision of services similar to the Services being provided pursuant to this Agreement.
41. You warrant that you have the legal right to disclose all personal data that you disclose to us and that the processing of that personal data by us will not breach any applicable laws (including the Data Protection Act 1998).

Liability

42. While we endeavour at all times to ensure the accuracy of the completed work supplied to you, it is your responsibility to verify its accuracy upon receipt and we shall not be liable for any inaccuracies or any losses directly or indirectly arising from such inaccuracies. Any errors notified to us within 14 days of your receipt of such work will be rectified by us free of charge.
43. We shall not under any circumstances be liable for failings, defects, inaccessibility, errors or bugs in any third party software or solutions that we provide as part of the Services.
44. We shall not under any circumstances be liable for the action, inaction or delay of any third party provider (such as hosting company, graphic designer, copywriter, travel agent, airline, courier company) who we engage as part of the providing the Services.
45. We shall not under any circumstances be liable for any loss of profits, income, revenue, use, production, anticipated savings, loss of business, contracts or commercial opportunities, loss of or damage to goodwill or reputation, loss or corruption of any data, database or software or any consequential or indirect loss of any type suffered by you.
46. Our total liability to you, whether in contract or otherwise, shall be limited to the price paid for the Services in the 12 months preceding any formal claim made by you.
47. Nothing in these terms and conditions excludes our liability for death or personal injury caused by our negligence or for fraud or fraudulent misrepresentation or for any other liability that cannot be excluded or limited by applicable law.
48. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
49. We shall not be liable for any loss, damage or theft of any data, materials, projects, equipment or any items relating to the Services.
50. You agree that we may communicate with you by email sent without encryption over the internet. We shall not be responsible for any loss or damage arising from unauthorised interception, re-direction, copying or reading of emails, including any attachments, nor shall we be responsible for the effect on any computer system (or any loss or damage arising from any such effect) of any emails, attachments or viruses which may be transmitted by this means.
51. We do not advise on financial or taxation matters and we recommend that you seek suitable advice on these areas. As such we shall have no liability whatsoever for any claim related to financial or taxation matters.
52. We will not be liable under any circumstances for any loss or other liability suffered or incurred by you or any third party as a result of our compliance with the Anti Money Laundering legislation or any other applicable law or regulation.

Termination

53. Without prejudice to any other rights or remedies to which either of us may be entitled, either of us may terminate the Contract without liability to the other (except for charges for work already performed but not yet paid) if:
    1. the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
    2. the other party provides at least 30 days’ written notice of termination to the other; or
    3. an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
    4. an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
    5. a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
    6. the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or
    7. the other party ceases, or threatens to cease, to trade; or
    8. the other party (being an individual) is the subject of a bankruptcy petition or order;
    9. the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
54. We may terminate the Contract at any time if we reasonably believe that you are not comply- ing with all applicable law and regulation or are doing anything that might bring us into disrepute or damage our goodwill or reputation.
55. Where we are providing Services on a monthly retainer basis, you may terminate the Contract by providing us with one month’s written notice.
56. On termination of the Contract (howsoever caused) we will charge you for all the work completed by us up to the date of termination on a pro-rata basis and any cost incurred by us in concluding or transferring the matter. In addition, if we have not taken on work from other clients in order to carry out the work for you, we reserve the right to charge you the balance of the charges that would have been payable for that particular project or assignment.
57. Termination of the Contract, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination.
58. We will not be obliged to retain documents and information or any other materials provided by you to us after termination of the Contract and we accept no liability or responsibility for any loss or damage caused by our failure to retain files and/or documents after such termination and are authorised by you to destroy the files and/or documents after such time.
59. After completion of the Services, you agree that we shall be entitled to retain and use for our own purposes copies of all documents created or used by us during the provision of the Services.
60. You agree that we shall be entitled to retain all files and documents created or used by us during the provision of the Services until our fees and disbursements have been paid in full.

Assignment and subcontracting

61. We may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of our rights under the Contract and may subcontract or delegate in any manner any or all of our obligations under the Contract to any third party or agent.
62. You shall not, without our prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under the Contract.

Waiver

63. A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

No partnership

64. Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between us, nor constitute either of us the agent of another party for any purpose. Neither of us shall have authority to act as agent for, or to bind, the other in any way.

Third Party Rights

65. A person who is not a party to the Contract shall not have any rights under or in connection with it.

Entire Agreement

66. The Contract constitutes the entire agreement between us. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of us that is not set out in the Contract.

Governing Law and jurisdiction

67. These terms and conditions are governed by the law of England and Wales and the English courts shall have exclusive jurisdiction to settle any dispute or claim that arises in connection with the provision of the Services.