Terms & Conditions of Trade
01 —
Definitions & Interpretation
The following terms and conditions apply to the Contract (see definition below) and each future request for the supply of services and/or materials received by the Agency from the Customer (see definition below) from time to time unless otherwise agreed in writing. The supply of the Deliverables (see definition below) shall be subject to these terms, which shall take precedence over any terms and conditions of the Customer.
1. Definitions In these terms and conditions the following words shall have the meanings given in this clause:
1.1 “Agency” & “Peak Agency” means Peak Agency Design Limited, a company registered in England;
1.2 “Brief” means the written brief describing the Deliverables, their intended use and any pre-set timings for supply, signed by the Customer and supplied to the Agency in advance of the conclusion of the Contract;
1.3 “Customer” means the person, firm or company described as such overleaf;
1.4 “Contract” means the contract consisting of the front and back of this form and concluded by either the Customer signing overleaf and returning it to the Agency or the Agency starting work on the Deliverables;
1.5 “Deliverables” means the services and/or materials to be supplied by the Agency under this Contract, described in brief overleaf and in more detail in the Brief;
1.6 “Job Cost” means the fee to be charged by the Agency for the Deliverables and specified on the front of this form;
1.7 “Project” means the job described overleaf;
1.8 “Rights” means all copyright, design rights (whether registered or unregistered), patents, rights in trademarks (whether registered or unregistered), database rights or other intellectual property rights in the Deliverables, for the full term of those rights, worldwide.
02 —
Services
2.2 Prior to commencement of the Initial Services, Peak Agency require the Client to pay a non-refundable deposit for the Initial Services. Plug and Play shall not commence the Initial Services until the Client has given its written acceptance of the Scope of Work, has executed this Agreement and paid any deposit that may be due.
2.3 The Client acknowledges that PPeak Agency shall allocate time and resources to the Services on the basis of the chargeable time estimates set out in the Scope of Work. The Client accepts that its failure to promptly provide information, instructions or otherwise respond fully to communications from Peak Agency will mean that the allocated resources are no longer available and will result in the Services having to be rescheduled which could cause significant delays to the Services and an adjustment to the Fees as a result. Such delays may be for a longer period than the period of delay by the Client.
2.4 Any dates and times for performance of the Services by Peak Agency as set out in any document or discussion between the parties are estimates only and time shall not be of the essence in respect of these. Peak Agency shall not be liable for any loss, damage, cost or expense caused directly or indirectly by any delays in performance of the Services.
2.5 The Client acknowledges that requests for Additional Services during the delivery of the Initial Services may impact any estimated delivery dates and Peak Agency is entitled to adjust any estimated delivery dates further to accommodate the Client’s requests.
03 —
Variation To Scope of Work, Services & Terms
3.2 Plug and Play may amend these terms and conditions from time to time.
3.3 If the Client wishes to amend the Scope of Work at any time following its acceptance of the Scope of Work, it shall notify Plug and Play of the proposed amendments. Plug and Play will use reasonable endeavours to accommodate the Client’s revised requirements but the Client acknowledges that this may result in a change in any estimate an adjustment to the Fees and timelines which have been given by Plug and Play. Plug and Play shall notify the Client of any revision to the Fees and shall not be obliged to proceed with any amendments to the Scope of Work unless the Client agrees in writing its acceptance of the revised Fees.
3.4 If Plug and Play determines, in its sole discretion, that it cannot accommodate a Client’s proposed changes to the Scope of Work, it reserves the right to refuse the Client’s request.
3.5 Plug and Play reserves the right to decline a request for Additional Services for any reason and at any time. Where Plug and Play is willing to accept a request to provide Additional Services, it shall not commence such Additional Services until the Client has given its written acceptance of the relevant Scope of Work for the Additional Services, paid any deposit that may be due and signed an Additional Services Agreement where required by Plug and Play.
3.6 Any typographical, clerical or other error or omission in this Agreement, any sales literature, quotation, the Scope of Work, price list, acceptance of offer, invoice or other document or information issued by Plug and Play shall be subject to correction without any liability on the part of Plug and Play.
3.7 Except as set out in this clause 3 no variation of these terms and conditions or this Agreement shall be effective unless it is made in writing and signed by both parties.
04 —
Corrections of Errors
4.1 During the performance of the Services if the Client notifies Peak Agency of any Errors, Peak Agency shall endeavour to correct such Errors.
4.2 Where however there are no Errors but the Client notifies Peak Agency of additional changes or modifications that it requires to be made to the Deliverables and such changes or modifications are outside the remit of the Scope of Work then clause 3.3 shall apply.
4.3 Where Peak Agency is unable to correct any Error notified by the Client it shall make a proportional refund to the Client of any monies already paid by the Client to Peak Agency for the specific deliverable exhibiting the unfixable Error less the cost of all other work already done by Peak Agency in performing the Services. Where Peak Agency makes a refund to the Client in accordance with this clause 4.3 it shall have no further liability to the Client in respect of such Errors.
4.4 If any Errors result from a defect which is caused by an act or omission of the Client, and through no fault of Peak Agency, then Peak Agency shall provide assistance reasonably requested by the Client in remedying any such defect but reserves the right to charge the Client for such assistance at its then current prices and fees and which the Client shall pay. Where the Client is not prepared to pay then Peak Agency is under no obligation to provide further assistance.
05 —
Client Obligations
5.1The Client agrees:
5.1.1 to pay the Fees for the Services and any other sums due to Peak Agency in accordance with this Agreement;
5.1.2 to fully cooperate with Peak Agency in the provision of the Services;
5.1.3 that this Agreement does not include the provision of equipment, telecommunications or other services necessary to host or access the Deliverables (unless Peak Agency has agreed in writing to provide Hosting Services) and the Client is responsible for providing and maintaining suitable equipment, telecommunications and support services to facilitate access to the Deliverables;
5.1.4 to act in good faith towards Peak Agency at all times;
5.1.5 to keep all passwords provided by Peak Agency secret at all times;
5.1.6 not to interfere or attempt to interfere with the proper working of the Deliverables and in particular shall not attempt to circumvent security, tamper with, hack into, or otherwise disrupt any computer system, server, website, router or any other internet connected device of Peak Agency; and
5.1.7 to only use the Deliverables subject to the terms and conditions of any licence granted to it by Peak Agency pursuant to clause 10.2 and any applicable laws and regulations.
5.2T he Client acknowledges that Peak Agency’s ability to provide the Services is dependent upon the full and timely co-operation of the Client (which the Client agrees to provide), as well as the accuracy and completeness of the Client Content and other information provided by the Client. Therefore the Client agrees to provide complete and accurate Client Content and any other information that may be required for the Deliverables.
5.3 Where the Client fails to provide the Client Content and/or other required information or materials or to reply to any request for information from Peak Agency or delays in doing so, Peak Agency shall not be liable for any delay or failure on its part to perform the Services as a result and reserves the right to:
5.3.1 cease providing the Services and charge for the work completed to date and any wasted expenditure incurred by Peak Agency as a result of the unexpected delay to the work including but not limited to the cost of unused time slots pre-allocated to the Services; or
5.3.2 change the Scope of Work to account for the lack of information in which case any resulting change to the Fees shall be borne by the Client.
07 —
Fees
7.2 The Client acknowledges and agrees that:
7.2.1 all Fees quoted are estimates only, never fixed fees (unless expressly stated to be so in Part 1 (Commercial Terms Sheet) or an Additional Services Agreement), due to the nature of the work involved and so are subject to change. Estimated Fees are not binding on Peak Agency and shall be kept under review and in the event of an Scope Creep or anticipated Scope Creep shall be adjusted on notice to the Client;
7.2.2 Fees have been calculated on the basis of the assumptions set out in Part 1 (Commercial Terms Sheet) and any assumptions in the Scope of Work or an Additional Services Agreement and the initial understanding of the work required detailed in the Scope of Work and that the remit of work required may change as the Client’s understanding of its own requirements changes.
7.3 Peak Agency reserves the right to increase the Fees in the event of:
7.3.1 Scope Creep;
7.3.2 any assumptions specified in Part 1 (Commercial Terms Sheet) the Scope of Work or an Additional Services Agreement being or becoming incorrect or changing over time;
7.3.3 where the Client requires further amendments to Deliverables which are not specified in the Scope of Work;
7.3.4 where the Client approves a deliverable and subsequently changes their mind resulting in additional time spend by Peak Agency;
7.3.5 the provision of Additional Services;
7.3.6 renewal of the Hosting Services; and/or
7.3.7 where the Client delays in providing any information required by Peak Agency or fails to perform any of the Client’s obligations under this Agreement.
7.4 Any increase to the Fees under clause 7.3 shall be calculated and charged for on a time and material basis at Peak Agency’s then current rates and invoiced on a monthly basis unless otherwise specified by Peak Agency.
7.5 Peak Agency’s rates may be subject to change from time to time.
7.6 In the event that Peak Agency is to incur expenses or third party costs in the provision of the Services, it shall notify the Client in advance. Expenses or third party costs shall be invoiced by the Client at the end of the month in which the expense is incurred and shall be charged for at the rate imposed by the relevant third party.
08 —
Payment
8.2 The Client shall pay the Fees and any other charges due on the date of Peak Agency’s invoice for the same.
8.3 All Fees and other charges are exclusive of value added tax and any similar taxes. All such taxes are payable by the Client.
8.4 If the Client fails to make any payment when due to Peak Agency whether under this Agreement or any other agreement between the parties, then without affecting any other rights which Peak Agency may have Peak Agency shall be entitled to:
8.4.1 suspend performance of all or any of the Services (including Hosting Services), including removing the Deliverables until paid; and /or
8.4.2 to be paid compensation and charge interest on the overdue amount at the statutory rate and otherwise in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended), or, if higher or if no such rate exists, at a rate of 8.5% per annum above the sterling base rate from time to time of the Bank of England, which shall accrue from day to day both before and after judgement, from the invoice date until payment is made in full and shall be compounded quarterly; and/or
8.4.3 retain any deposit already paid by the Client.
8.5 Pending payment to Peak Agency in full of all sums due from the Client, Peak Agency will reserve possession of any documents and title to any aspect of the Services and Deliverables that would otherwise be the property of the Client.
8.6 The time for payment of the Fees (or any part thereof) shall be of the essence.
8.7 The Client shall pay all amounts due to Peak Agency in full without any set-off, abatement, cross claim, deduction or withholding of any kind other than as required by law.
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Hosting Services
9.2 Peak Agency shall use reasonable endeavours to select reputable Third Party but shall not be responsible for any unavailability or interruption to the Deliverables caused by a Third Party ISP, its servers, other equipment, networks or any public network.
9.3 Occasionally it may be necessary for Peak Agency to transfer the Deliverables to a different Third Party.
9.4 Either party may terminate the Hosting Services on one month prior written notice.
9.5 The Hosting Services shall be charged for on a annual basis in accordance with Peak Agency’s then current rates as advised by Peak Agency to the Client.
9.6 Peak Agency reserves the right to suspend the Hosting Services at any time where the Client has failed to pay any sum when due to Peak Agency under this Agreement.
9.7 Peak Agency reserves the right to terminate the Hosting Services if circumstances arise which render it unable to provide such services including termination of its arrangements with relevant Third Party.