Defined words are listed at the end of these Terms, and should be referred to when reading these Terms. “You” and “us” refer to the Client and the Designer respectively. Please note that headings are included for ease of reference only, and not by way of definition of the clauses they describe.
- We start by preparing a fixed Price quotation Proposal for you.
- If the Proposal is acceptable to you, your communication of acceptance is an offer to enter into a firm contract with us on the basis of our Proposal and these Terms. By accepting the Proposal you give us the go-ahead to proceed with the Project from the Effective Date even if you do not sign any documents, and these Terms shall govern the relationship between us even if you do not read them. Acceptance of delivery of our Services shall be conclusive evidence of your acceptance of these Terms.
- If you have any queries or objections on the Proposal, then please raise these immediately either before or at the time when you accept our Proposal, otherwise it may be too late. If after you accept the Proposal you want to request a Variation to the Project, we will assess it to determine the effect of the Variation on the Price and any agreed timetable. We will then let you know the basis on which we would agree to the Variation, and if you are happy, it will be recorded in writing (otherwise the Variation will operate simply as an informal arrangement without contractual effect).
- Any Services we undertake for you are on these Terms. If you send us other terms, for example any which you attempt to include on your purchase or request order, confirmation of order or similar document, then these other terms are deemed to be an offer by you to buy our Services under these Terms.
2. Our charges
- After you accept our Proposal:
- if the total Website quote is £1,500 or less, we invoice you 50% of the total Website quote, and any third party costs mentioned in the Proposal will be charged in our initial invoice. The 50% balance will be invoiced when the work is finished and such final invoice is due on Go Live date (or within 2 months of sending the first invoice – whichever comes first); or
- if the total Website quote is over £1,500, we invoice you 35% of the total Website quote, and any third party costs mentioned in the Proposal will be charged in our initial invoice. Once you sign the Design Sign Off Form we will invoice you a further 50% (or within 2 months of sending the first invoice – whichever comes first), and the 15% balance will be invoiced when the work is finished and such final invoice is due on Go Live date (or within 3 months of the website build being completed – whichever comes first).
- Work will not commence until the first installment has been paid in full and the Website will not be launched or Go Live or if other type of work and/or Services such work and/or Services will not be delivered up until the final invoice has been paid in full (including any third party costs and costs due to Variations).
- If the Price has been subject to Variation, or there have been unanticipated expenses, these items will be included in the final invoice.
- Invoices are due immediately. If we do not receive payment of any sums due, we reserve the right to stop work on your Project without notice, and this will suspend our obligations under the Proposal until payment is received, and you accept and acknowledge this will have a delaying effect on the Project.
- We may charge interest on overdue invoices from the date payment is due until the date of payment at a rate of six (6) per cent per year above the base rate of the Bank of England.
3. Your obligations
- To enable us to perform our obligations towards you, you agree to co-operate with us, and provide us with any information reasonably required, and obtain any necessary permissions and consents before the beginning of the Project.
- In particular you agree to brief us through a single project manager with final authority to make all decisions on your behalf, to make decisions in a timely manner where necessary to enable us to progress your Project, to approve Content, and to use reasonable efforts to ensure that Content provided by you is correct and does not infringe the intellectual property rights of any third parties.
- You accept that your failure to comply with your obligations may have an impact on the scheduled delivery dates (thereby modifying our obligations accordingly), and may in certain circumstances be deemed a cancellation of the Project rendering you liable to pay cancellation fees by way of liquidated damages and not a penalty, the amount to be next invoiced to you (depending on the stage reached in the Project when you cancel) less 5% deduction off the total price if the next invoice would be the final invoice after Go Live. We shall notify you immediately if we intend to make any claim for additional costs or cancellation fees.
- Our policy is to obtain your written agreement to the various stages of the Project as set out in this clause. We produce designs for your approval, and ask you to complete the Design Sign Off Form so that we may proceed to build the Website in HTML with clickable links. When you are happy with the HTML build, we enter the Content and functionality, and the Website is then regarded as completed. We will then invoice you the final payment. We ask you to record your acceptance by signing a Completion Form, and your Website is then ready to Go Live. If the Completion Form is not signed within 10 business days or no reason is given for not signing the Completion Form we will still invoice you the final payment. Any defects in the Website discovered after the Completion Form has been signed or the expiration of the 10 business days (whichever is earlier) will be addressed under our Maintenance agreement with you.
- If any Content introduced by you for the Website infringes the IPRs of any third party or you otherwise break your obligations towards us, you agree to indemnify us against any claims, costs and expenses which we may incur as a result, whether these arise directly or indirectly.
- Unless otherwise agreed, you will allow us to enforce our moral rights by displaying a design credit in an appropriate space on the Website to claim authorship for our work.
4. Our obligations
- From the outset when you contact us to request a Proposal we will keep your information private and confidential. Should the Project involve the disclosure to us of Confidential Information about your business, we agree to not use the Confidential Information for any purpose other than the performance of our obligations under the Project.
- We agree to have in place and to maintain adequate insurance cover with an insurance office of repute to cover our liability to you for any failure to fully perform our duties and obligations.
- We agree to deliver the design and build of your Website within the budget and the timescale agreed with you, although time shall not be of the essence of our agreement with you.
- Once you have paid the Price in full, the Brand IPR will belong to you. However, if the Brand IPR includes underlying IPR which we either need to reuse, or which belongs to a third party, then that IPR shall belong to us or the third party as the case may be, and you will instead have a licence to use it on the same terms as set out in Clause 5(b). The IPR in everything else created during the Project will remain vested in us, or in third parties who create them.
- We grant you a non exclusive, worldwide, royalty free, perpetual licence to use any IPR created for you during the Project and for all purposes falling within the scope of the Services. Should you want to use the IPR for other purposes after conclusion of the Project then you must seek our permission and we shall be entitled to impose such terms on our licence as we see fit.
Quality We warrant that the Services performed under these Terms shall be performed using reasonable skill and care, and shall be of a quality conforming to generally accepted industry standards and practices. We further warrant that the IPR in the Website is our original work and that so far as we are aware use of the Brand IPR in your Website will not infringe any third party rights. Subject to clause 7, we agree to indemnify you against any claims, costs and expenses which you may incur as a result of our breach of clauses 5 (a) and (b), whether these arise directly or indirectly. However, this indemnity does not apply to any infringement of the Brand IPR or a third party’s IPR arising as a direct result of any alteration or modification to the Brand IPR or third party IPR or any part of it by you or as a result of its use or any part of it in combination with other material not approved by us.
We shall indemnify and hold harmless the Client against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the normal operation, possession or use of the Brand IPR or Website by the Client during the term of this Agreement infringes the patent copyright registered design, or trade mark rights of a third party (an ‘Intellectual Property Infringement’) provided that the Customer:
- immediately gives notice to Top Left Design Ltd of any Intellectual Property Infringement upon becoming aware of the same;
- gives Top Left Design Ltd the sole conduct of the defence to any claim or action in respect of any Intellectual Property Infringement and does not at any time admit liability or otherwise endeavour to settle or compromise the claim or action except upon the express instructions of Top Left Design Ltd; and
- acts in accordance with the reasonable instructions of Top Left Design Ltd and gives to Top Left Design Ltd such assistance as it shall reasonably require in respect any defence including the filing of any pleadings and other court process and the provision of all relevant documents.
8. Limitation of liability
- We accept liability without limit if our negligence causes death or personal injury of you or your staff.
- We accept liability for any losses incurred by you arising from our negligence or breach of contract, not to exceed a sum equal to the amount of Project Price which you have paid at the time such claim arises. However, we will not become liable to you for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This applies even where such a loss was reasonably foreseeable.
- You may not assign, charge or license your rights or obligations under these Terms unless we give specific written consent.
- We may assign or license our rights or obligations under these Terms, and we may also engage any person, firm or company as our sub-contractor to perform any of our obligations, although we shall be liable for any inadequacy of service given by such a third party.
- Nothing in these Terms shall be deemed to create a partnership, or joint venture, agency, or contract of employment of any kind between us.
- Either of us may terminate this agreement by notice in writing to the other if the other party commits a serious breach of these Terms and, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice to do so, or the breach is incapable of remedy.
- Either of us may also terminate this agreement if a winding up, administration order or composition or arrangement with creditors is entered into by the other party.
- Termination shall not affect accrued rights or provisions that are intended to survive these Terms.
11. Force Majeure
Neither of us shall be liable for any delay or failure to perform any of our obligations if the delay or failure is caused by Force Majeure. The one affected by Force Majeure, shall be entitled to a reasonable extension of its obligations after notifying the other of the nature and extent of such events.
A failure by either of us to enforce any one or more of these Terms shall not operate as a waiver of that term or of the right at any time subsequently to enforce all Terms of this agreement.
Any notice to be given by either of us to the other will be in writing and shall be deemed served if hand delivered to the other at the time the letter was delivered personally or if sent by pre-paid post shall be deemed to have been delivered in the ordinary course of post, or if sent by facsimile or email, upon confirmation of receipt of facsimile or email, provided that the address or transmission number is that given by the other in the Proposal or is such other address or transmission number as may from time to time be substituted in writing for that initially given.
14. Entire agreement
These Terms embody the entire agreement between us and supersede all prior oral or written agreements, arrangements, or proposals. Unless expressly provided elsewhere in these Terms, this agreement may only be altered by our acceptance of the alteration in writing.
15. Third parties
Nothing in these Terms is intended to, nor shall it confer any rights on a third party, and the Contracts (Rights of Third Parties) Act 1999 shall not apply.
16. Governing law and jurisdiction
These Terms shall be governed by and construed in accordance with the laws of England and we hereby submit to the exclusive jurisdiction of the English courts for all purposes.
In this document the following words shall have the following meanings:
- “Brand IPR” means the copyright or rights in design or other similar intellectual property right reflecting your corporate identity created during the Project and embodied in the Website giving the unique look and feel of your Website.
- “Confidential Information” means all business, technical, financial or other information created or exchanged between us in the course of the Project.
- “Client” means the organisation or person that purchases Services from the Designer.
- “Completion Form” is the form we ask you to sign to record that the Website is ready to Go Live, once we have built the Website with the Content and functionality indicated in the Proposal.
- “Content” means all text, graphics, logos, photographs, images, moving images, sound, illustrations and other materials featured, displayed or used in the Website.
- “Designer” means the organisation or person that provides the Services to the Client.
- “Design Sign Off Form” is the form we ask you to sign to record your satisfaction with the Design we create for your Website.
- “Effective Date” is the start date given in the Proposal if any, or the date on which you sign the Terms or if you fail to sign the Terms either by the time we begin work on the Project or at all, then it is the date on which you give written or verbal notification to proceed whether by telephone or email, or if your actions in some other way imply acceptance of the Proposal.
- “Force Majeure” means events or circumstances outside a party’s reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or services.
- “Go Live” is the date when the Website is completed and hosted on the host server and accessible on the world wide web via the agreed URL address for the Website.
- “IPR” means any patents, copyright, design right, registered designs, trademarks, rights in domain names or in respect of confidential information, unfair competition rights, and similar rights recognised in any country of the world whether or not registered.
- “Maintenance” means the support services which the Designer explains more fully in the Proposal to keep the site updated, which the Client may have purchased or subsequently buy.
- “Price” means the estimated price for the job to be paid by you to us as detailed in the Proposal and includes any Variation in price agreed between us thereafter.
- “Project” means the Services to be performed by us for you as detailed in the Proposal. (o) “Proposal” means the statement of work, quotation or other similar document describing the Project.
- “Services” describes the range of work that we undertake to perform for you, including but not limited to website design and development, provision of content or images for your website, and includes all designs, proposals, actions, documents, or other similar work which we are engaged to perform during the Project, and includes any Variation.
- “Terms” means these terms and conditions, and where the context requires it includes the Proposal and any Variation and the Supplemental Terms where applicable.
- “Variation” means any change to the scope of the Project agreed by us in writing.
- “Website” means the website to be designed by us for you, as described in the proposal.