These terms and conditions set out the legal and contractual basis upon which the services offered (Services) will be provided by Position One Ltd (hereafter referred to as “the Company” or “we” or “us”) to you (hereafter also referred to as "the Client"). Orders are accepted and Services are provided subject only to these terms and conditions.
1. Instructions & Order Acceptance
1.1 Verbal instructions given by you, either by telephone or in person, must be confirmed in writing (post or email), providing precise details, clarifying the brief. We shall prepare a proposal and fee estimate for the work to be undertaken, based upon our understanding of your instructions.
1.2 To confirm your instructions, your acceptance of the fee estimate, and our terms and conditions we require confirmed acceptance of the same. Electronic acceptance of a proposal and fee estimate viewed online, will be taken as legal order confirmation of your instruction to carry out the works stated in the proposal. Your acceptance will also be confirmed to you by email.
2.1 After order confirmation, we shall aim to complete the work described in the proposal for the total amount of the fee estimate shown. However, you should be aware that our estimate is not a definitive fixed price for the Services, and as such it may be subject to variation.
2.2 If the project changes from its initial description (as defined in the proposal) or your alterations or additions exceed our fee estimate allowances for such, we shall notify you and offer to provide you with a revised fee estimate for approval.
2.3 Where it is not possible to determine or give notice of the likely cost of extra work before it is undertaken, design and consultancy work will be calculated on a time spent basis (i.e. primarily by reference to time spent by the individual working on the matter and their respective charge out rate) plus VAT if applicable and any incurred disbursements.
3. Payment Terms
3.1 The Company does not provide Services on credit terms. Unless otherwise specified in the proposal, periodical payments will be required in respect of the Services.
3.2 The Company requires payment in advance for all preliminary design work. Should you decide not to proceed with a project, payment for the preliminary work would be your only expense relating to the brief. Copyright in all
designs and concepts will remain with the Company.
3.3 Payment for further development work and for the production and delivery of completed work will be paid on mutually agreed dates in the project proposal, details of the same being specified in the proposal. Payment is due within
21 days of presentation of an invoice and the Company will not be obliged to proceed with any stage of the Services until it has received payment for the said invoice.
3.4 If you fail to pay any amount payable by you under this agreement, the Company shall be entitled to charge you late payment interest on the amount overdue at the statutory rate (currently 8% over the Bank of England base rate), accruing on a daily basis from 30 days after the invoice date until payment is made, whether before or after any judgement.
3.5 You may also be charged a fixed sum of £40 for the cost of recovering the late payment.
4.1 We shall provide proofs of all work for scrutiny by you, either in printed form or online. Provided we have done so, the responsibility for bringing any errors or omissions to the attention of the Company and the
liability of ensuring that the completed work is correct shall be borne by you. The Company shall not be liable for any damage incurred by you resulting from errors contained within the work which you fail to bring to our attention.
5.1 You agree to provide such photographs and artwork (Materials) as may be required for inclusion in the completed work (in an appropriate format and on time) to avoid unnecessary delays or additional costs. We reserve the right to invoice for time spent rectifying Materials supplied in an inappropriate format. If you are unsure as to how Materials should be supplied, you should refer to your contact in the Company.
5.2 You shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights and you shall indemnify the Company against all damages, losses and expenses arising as a result of any action or claim that use of the Materials infringes any intellectual property rights of a third party.
6. Approval of websites
6.1 The Company will provide you with the opportunity to review your completed website on the Internet in our own test web space, utilising the web server configuration for which the site was designed (Acceptance Tests).
Acceptance of the website shall be deemed to have taken place on the earlier of:
(a) the expiry of seven days following the completion of the Acceptance Tests unless you have notified us in writing of any defects in the website;
(b) the use by you of any part of the website for any revenue-earning purposes or to provide any service to third parties other than for test purposes.
Upon Acceptance, payment for this part of the Service will become due upon presentation of our invoice.
6.2 Differences in the graphical presentation of websites between operating systems, browsers and devices are common and website functionality may be impaired and graphical presentation may differ in some combinations. The Company will endeavour to ensure that the final completed website is functional and viewable on a range of popular platforms and devices, but will not and cannot guarantee that the website will be fully functional and fully viewable on all available devices and platforms in all combinations.
6.3 In the event that any defects are identified by you in writing, Acceptance shall be deemed to have taken place upon rectification by the Company of those defects. For the avoidance of doubt, differences in functionality and viewability between combinations of device, platforms and viewing software shall not render the website defective and shall not impede Acceptance.
6.4 If any failure to pass the Acceptance Tests results from a defect which is caused by you, the website shall be deemed to have passed the Acceptance Tests notwithstanding such defect.
6.5 The Company accepts no liability for problems which may arise should you subsequently request that the site be delivered to a web space which operates a different server configuration from that used for the website when originally Accepted. The cost of any work requested from the Company to remedy such problems will be borne by you and will be in addition to any estimates previously given and will be charged at the Company’s current rates.
6.6 The Company considers a website to have been delivered when it has been transferred from our test web space to a commercial web space arranged by yourselves or by the Company, and is viewable by the general public (the Golive date).
6.7 You agree to indemnify the Company against all damages, losses and expenses arising as a result of changes to functionality and graphical presentation, present or absent, as a result of website users viewing or using the website after the Golive date.
7. Hosting of websites
7.1 If the Company offers website domain hosting and email services to the Client, additional Conditions of Supply of Hosting Services and our Acceptable Use Policy apply in respect of those services. The Company may withdraw such hosting facilities where the Client is in breach of payment terms.
8.1 Work undertaken by the Company, its employees or assignees is subject to the Copyright, Designs and Patents Act 1988. Unless otherwise agreed in writing, copyright of all work, including preliminary designs and concepts, belongs to the Company. This includes the reproduction rights and property rights attaching to negatives and transparencies resulting from photographic assignments, to illustrations and to digital media files required to produce final artwork or digital content.
8.2 Copyright and ownership of all original artwork, however originated, and whether or not used in the final completed work, shall be retained by the Company. Intellectual property rights created by the Company as a result of the project shall also remain with the Company.
9.1 On payment in full of all rendered invoices, the Company shall grant you a non-exclusive licence to use such photographic images, illustrations, copywritten material, published website pages, electronic image files, portable document files, streaming audio content, video movie files and compiled animation files that form an integral part of the completed work, as described in the proposal. This licence is not transferable to any party other than you, without the express written permission of the Company.
We will always aim to complete our work according to the timescales specified in the proposal. However, time shall not be of the essence and the Company shall not be liable for any damage or loss caused to you by delay in executing and compiling such work.
When the completion of work is delayed, whether as a result of failure by you to give adequate instruction to the Company or through substantial additions or alterations being made to the work, the Company reserves the right to render interim invoices to you for work already undertaken by the Company, or its assignees, subcontractors or agents. Such invoices will be payable within 21 days of the invoice date.
The proposal will be deemed to have been satisfied upon delivery of the completed work to you. Once delivery has been confirmed, the Company will be released from any further contractual obligations with you, except in relation to written complaints received within 7 days of delivery.
Any complaints about delivered work must be made in writing to the Company within 7 days of Delivery or the Acceptance Tests whichever is earlier. Queries concerning invoices raised must also be raised with the Company in writing within 7 days of the invoice date. We shall always try to deal with any complaints promptly and to resolve matters to your satisfaction, but complaints or queries made outside of the aforesaid period will not require the Company to undertake any reparations.
14.1 Either party may terminate this agreement immediately at any time by written notice to the other party if:
(a) that other party commits any material breach of its obligations under this agreement which (if remediable) is not remedied within 30 days after the service of written notice specifying the breach and requiring it to be remedied; or
(b) that other party:
(i) ceases to trade; or
(ii) becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party; or
(iii) a person is appointed to manage or take control of the whole or part of the business or assets of that party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court; or
(iv) the ability of that party’s creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party’s creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or
(v) any process is instituted which could lead to that party being dissolved and its assets being distributed to its creditors, shareholders or other contributors.
14.2 On termination of this agreement by the Company pursuant to this clause, all licences granted by the Company under this agreement shall terminate immediately.
14.3 On termination of this agreement otherwise than on termination by the Company pursuant to clause 14.1, the Company shall promptly return all Materials to you, still held by the Company, subject to the payment of the Company’s expenses reasonably incurred.
14.4 On termination of this agreement, all provisions of this agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
15.1 The Company shall perform the Services with reasonable care and skill.
15.2 Subject to section 6, the Company warrants that the website will perform substantially in accordance with the specification in the proposal for a period of one month from Acceptance. If the website does not so perform, the Company shall, for no additional charge, carry out any work necessary in order to ensure that the website substantially complies with the proposal.
15.3 The warranty set out in clause 15.2 shall not apply to the extent that any failure of the website to perform substantially in accordance with the proposal is caused by any Materials.
15.4 This agreement sets out the full extent of the Company’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
16. Limitations of remedies and liability
16.1 Nothing in this agreement shall operate to exclude or limit the Company’s liability for:
(a) death or personal injury caused by its negligence; or
(b) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(c) fraud; or
(d) any other liability which cannot be excluded or limited under applicable law.
16.2 The Company shall not be liable to you for any damage to software, damage to or loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.
16.3 Subject to clause 16.1, the Company’s aggregate liability in respect of claims arising out of or in connection with this agreement whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the total charges paid by you to the Company under this agreement.
17.1 Any amendments to the website and/or the completed work which you require following delivery shall be charged for at the Company’s current rates.
18. Force majeure
18.1 Neither party will be under any liability to the other in any way whatsoever for destruction, damage, delay or any other matters of that nature whatsoever arising out of war, acts of terrorism, rebellion, civil commotion, strikes, lock-outs and industrial disputes, fire, explosion, earthquake, acts of God, flood, drought, or bad weather or the requisitioning or other act or order by any Government department, council or other constituted body.
19.1 In so far as is permitted by law, if any individual item, clause, sentence, duty or statement within these terms be held to be void the remainder of the document will remain valid and in force.
20. Third Party Rights
20.1 This agreement is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person.
These terms and conditions shall be governed and interpreted in accordance with English Law and the English courts shall have jurisdiction to resolve any disputes between the Company and the Client.