1. SCOPE
These Standard Conditions of Sale (“the Conditions”) shall govern any supply of services or deliverables, (“the Services”) by Ware Anthony Rust Limited (Company Number 1890646) (“WAR”) to any person, firm or company (“the Client”), together (“the Parties”), to the exclusion of all other terms (whether written or not). Any variation of the Conditions shall not apply unless expressly agreed in writing by both the Parties. The Contract between WAR and the Client is formed when either the Client accepts the Schedule (as defined below), or WAR accepts the Client’s purchase order, or commences the Services whichever is the earlier (“the Contract”). The Terms form the entire basis of the Contract and the Client acknowledges that it has not relied upon any representation to enter into the Contract.
2. THE SCHEDULE
2.1 The Schedule attached sets out the objectives, scope, costs and estimated timescale of the Services (“the Schedule”). It is made after discussions with the Client relating to its requirements for the Services. It is made in good faith and on the basis of the information before WAR prior to submitting the Schedule. No oral or written statement in the Schedule or in any other document whatsoever is a representation or warranty that the intended results of the Services will be achieved or will be suitable for the Client and it is the sole responsibility of the Client to satisfy itself that the Schedule is in all respects suitable for the Client’s requirements.
2.2 Either party may, at any time, propose changes to the Services. However, no proposed change shall become effective until the parties have agreed, in writing, the change and all resulting changes to the Contract (including any resulting changes in resources required, fees payable or otherwise) and such changes have been signed by a duly authorised representative of each of the parties.
2.3 If the Schedule includes details of individuals involved in delivering the Services, WAR shall use reasonable endeavours to ensure that they are involved but may substitute those identified for others of equal or similar skills.
2.4 WAR will use reasonable endeavours to meet any timescales given in the Schedule or to which it has otherwise agreed in writing but any such timescales given shall be regarded as estimates only and WAR shall not be liable, in contract, tort or otherwise, for any failure to adhere to any such timescales.
3. CLIENT RESPONSIBILITIES
3.1 The Client acknowledges that the success of the Services depend upon the assistance and information provided by the Client and the Client hereby undertakes to provide such assistance, data and information as WAR requires and as more specifically provided in the Schedule and to promptly respond to WAR’s correspondence during the Contract.
3.2 In spite of the generality of the obligations in Clause 3.1, in order to satisfy the requirements of the Committee of Advertising Practices’ British Code of Advertising, Sales, Promotion and Direct Marketing (“the Code”), the Trades Description Act 1968 (as amended) and all other applicable regulations and legislation from time to time the Client shall promptly supply WAR with such relevant factual evidence as WAR requires to support any product claims the Client wishes WAR to issue.
3.3 The Client shall check carefully and approve or amend the final drafts of the Materials (as defined below) in writing prior to their release by WAR. If the changes required by the Client are material, in WAR’s opinion, WAR reserves the right to charge for such changes (at its standard hourly rates from time to time). If the Client does not approve or amend the Materials, within 3 working days of receiving them, such Materials shall be deemed approved and WAR shall bear no liability to the Client for their subsequent use.
3.4 WAR shall not be liable, in contract, tort or otherwise, for any failure or delay in providing the Services if such failure or delay arises from the Client’s failure to comply with its obligations under Clauses 3.1 and 3.2.
3.5 Subject to Clause 7.1, the Client shall ensure that the Materials comply with all applicable local laws, regulations and codes and include applicable disclaimers, warnings and public information for the countries in which the Material are intended to be used.
3.6 WAR acts as a principal and not as an agent of the Client in all its dealings with third parties on behalf of the Client. WAR may sub-contract work out at its own discretion, so long as Client’s requirements are properly satisfied costings adhered to and confidentially maintained. In all dealings with media proprietors and WAR suppliers, the placing of advertisements and production work is therefore subject to the terms of any contract made between WAR and the various proprietors and Client companies must be deemed to abide by any such contracts.
4. PRICE, CANCELLATION AND POSTPONEMENT
4.1 The Schedule shall contain the cost of the Services to be provided such costs shall be payable in accordance with Clause 5 and all payments by the Client are irrevocable.
4.2 The schedule may contain an estimate of third parties’ fees for additional Services.
5. PAYMENT
5.1 Invoices will be rendered on the completion of work (or after critical stages), and are due for payment by the 20th of the month following the period of invoicing (e.g. invoices rendered during August are payable before 20th September)
5.2 Charges for (i) Television commercial production and (ii) Market research projects and (iii) major or lengthy projects, in accordance with standard practice, are payable 50% upon the work being commissioned with the balance due on completion of the work
5.3 Fulfilment of these conditions of prompt payment is an essential part of Agency Terms of Service and WAR reserve the right to charge interest to the Client at an annual rate of 4% above the base rate, from time to time, of NatWest Bank Plc on the overdue balance
6. INTELLECTUAL PROPERTY
6.1 In these Terms:
6.1.1 “IPR” means copyright (including in reports, bespoke software and designs) and all other intellectual property rights wherever in the world arising, but excludes skill, expertise, concepts, discoveries and ideas, know-how and any other intangibles that can reside in the heads of individuals (“Know-How”); and
6.1.2 “Materials” means all materials incorporating IPR including copy, content, layouts, scripts and designs.
6.2 Subject to the Client paying all sums due under the Contract, title to the Materials provided by WAR shall pass to the Client on termination of this contract provided that, if the Services relate to website design, the Client shall only receive the content element of the IPR and the underlying software shall remain WAR’s or its licensors.
6.3 Following the passing of the title to the Materials to the Client, the Client grants WAR an irrevocable licence of such Materials to include in its portfolio(s) to show third parties for promotional purposes.
6.4 If the Materials contain the Client’s IPR, including trademarks whether registered or unregistered, the Client grants WAR a licence of such IPR to produce the Materials.
6.5 The Client agrees that any software element of the Services may belong to a third party or use open source software application tools (collectively “T.P. Software”) and the Client’s use of the T.P. Software may be governed by the terms of a user licence (“the Licence”). The Client warrants that it will comply with the terms of such Licence and the Client shall indemnify WAR against any costs, claims, damages and expenses WAR incurs as a result of the Client’s breach of such Licence.
6.6 Nothing herein shall be construed so as to prevent WAR from providing similar services for other clients or providing similar data or materials to other clients or from using any Know-How acquired in the provision of the Services for its own benefit or for the benefit of third parties.
6.7 Where WAR either purchases, procures or uses T.P. Software on behalf of the Client as part of the Services WAR gives no warranty that the possession and/or use of such T.P. Software is not an infringement of any third party IPR or other rights and WAR gives no warranty that no third party has any right, title or interest therein.
7. WARRANTIES AND LIABILITY
7.1 WAR shall use its reasonable endeavours to ensure that if applicable the Services comply with the Code.
7.2 Whilst WAR shall use its reasonable endeavours to pass to the Client the benefit of any manufacturer’s warranty on the T.P. Software, WAR gives no warranty in relation to such and the T.P. Software is provided “as is”. WAR give no warranty that the T.P. software purchased or procured on behalf of the Client is appropriate.
7.3 WAR warrants that it shall use its reasonable endeavours to provide the Services materially in accordance with the Schedule, subject to changes pursuant to Clause 2.2. The Client shall immediately notify WAR of a potential claim under this warranty and if it is shown to be in breach of such warranty in relation to particular Services, it shall, subject to Clause 7.5, at its own cost as soon as reasonably practicable reperform the relevant Services or, instead, if it so decides, waive or refund to the Client such of the fees payable or paid to WAR by the Client under the Contract as are attributable to those particular Services. This Clause 7.3 states the exclusive remedy of the Client, and the entire liability of WAR, for breach of such warranty.
7.4 If WAR fails to comply with its obligations under the Contract its liability to the Client in contract, tort, negligence or otherwise for any loss or damages whatsoever resulting shall be limited to refunding any monies already paid by the Client for the Services pursuant to the Contract.
7.5 Any advice, opinion or recommendation provided by WAR shall not amount to any form of warranty that the intended result will be achieved or, if the Services relate to website design, that any steps taken by the Client pursuant to such will guarantee that the Client’s IT systems or networks will be free from harmful components or from unauthorised interception or interference.
7.6 All other liabilities and warranties of WAR are excluded to the fullest extent permissible by law, save that nothing in the Contract shall exclude liability for death or personal injury caused by negligence or for fraudulent misrepresentation.
7.7 WAR shall not be liable, in contract, tort or otherwise for any loss of profits, business, revenue, goodwill or anticipated savings or for any indirect or consequential or economic loss whatsoever howsoever arising out of or in connection with the Contract.
7.8 Notwithstanding the generality of Clause 7.7 above, if the Services relate to website design, WAR shall not be liable, in contract, tort or otherwise, for any loss of connectivity, degradation of network bandwidth or loss of access to any systems, programs, data or networks, unintentional transmission of viruses or other harmful components.
7.9 WAR does not warrant that all colours will be exactly replicated in the final version of any Materials published.
8. FORCE MAJEURE
WAR reserves the right to defer performance of the Services or cancel the Contract, without liability to WAR, if it is prevented from or delayed in the carrying on of its business due to circumstances beyond its reasonable control.
9. TERMINATION
9.1 WAR may terminate the Contract forthwith by written notice to the Client if:-
9.1.1 the Client commits any breach of the Contract which, in the case of a breach capable of remedy, shall not have been remedied within 28 days of written notice of such breach. The parties regard the non-payment of sums due under Clause 5 as an irredeemable breach of the Contract; or
9.1.2 the Client ceases to or threatens to cease to carry on its business; or
9.1.3 a court orders that the Client be wound up, or the Client adopts a resolution for winding up (otherwise than pursuant to a bona fide scheme for solvent amalgamation or reconstruction) or has an administrator, administrative receiver or receiver appointed in respect of all or any of its undertaking or assets, or is unable to pay its debts as they fall due, or attempts to make or makes any arrangement or composition with or for the benefit of its creditors.
9.2 Termination of the Contract, for whatever cause, shall be without prejudice to the rights of either party accrued prior thereto, including without limitation any right to payment of any sum and any right to sue in respect of any antecedent breach of the Contract, and termination shall not affect any provision of the Contract which, in order to give full effect to its meaning, needs to survive such termination (and all such provisions shall survive such termination to the extent necessary to give full effect to their meanings).
10. CONFIDENTIALITY
10.1 Each of the parties hereto agrees to maintain confidential the Schedule, the terms of the Contract and all other information of a technical or commercially sensitive nature obtained from the other party either prior to, during or after the Contract and to use the same exclusively for the purposes of the Contract, and to disclose the same only to those of its employees, agents and sub-contractors as reasonably necessary for the purposes of the Contract.
10.2 Clause 10.1 shall not apply to information which was prior to its receipt in the possession of the other at its free disposal; or is subsequently disclosed to the recipient party without any obligations of confidentiality; or is or becomes generally available to the public through no act or default of the recipient party or its employees, agents, contractors or sub-contractors; or is required by law or a court or other competent authority to be disclosed Provided That the recipient informs the other party first and limits disclosure to what is absolutely necessary.
10.3 This Clause 10 shall survive completion of the Services or any earlier termination of the Contract and continue in force for 3 years thereafter.
10.4 Notwithstanding Clause 10.1 above, for the purposes of marketing or publicising or selling WAR’s services, WAR may disclose the general nature or category of the Services and the nature of the Client’s business but WAR shall not disclose the identity of the Client.
11. NON-SOLICITATION
Each party shall not, directly or indirectly, solicit the employment of any of the other’s directors or key officers, employees, consultants or subcontractors involved in performing the Services while the Services are being performed or for a period of 6 months following their completion or earlier termination of the Contract.
12. GENERAL
12.1 The Client shall not, without the prior written consent of WAR, assign, transfer or sub-let the benefit or the burden of the Contract or any part thereof. WAR may assign the Contract and/or engage sub-contractors, agents and others in the performance of the Contract without reference to the Client.
12.2 The failure of WAR to exercise or enforce any right under the Contract shall not be deemed to be a waiver of that right.
12.3 Notices under the Contract are to be served in writing by first class pre-paid post if both parties are resident in the United Kingdom, or by air mail if otherwise, to the recipient party’s address as it appears in the Contract and shall be deemed to have been received 48 hours, or in the case of airmail five days, after despatch.
12.4 If any term hereof is held to be void or unenforceable by any reason of law, it shall be void or unenforceable to that extent only and no further and all other terms shall remain valid and fully enforceable.
12.5 In the Contract WAR acts as principal and not agent for the Client and will enter into all related contracts with third parties as principal.
12.6 Nothing in the Contract should be construed as conferring rights on any third party, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
13. DISPUTE RESOLUTION
13.1 The Parties will attempt, in good faith, to resolve any dispute or claim arising out of or relating to this Contract promptly through negotiation between representatives of the Parties who are duly authorised to resolve the dispute or claim.
13.2 If such dispute is not resolved through such good faith negotiations within 20 working days, the Parties shall attempt in good faith to resolve the dispute through an alternative dispute resolution (“ADR”) procedure as recommended to the Parties by the Centre for Effective Dispute Resolution in England .
13.3 If the matter has not been resolved by an ADR procedure within 45 days of the initiation of such procedure, or if either of the Parties will not participate in such ADR procedure, the Parties shall be entitled to resolve the dispute or claim by recourse to the courts.
13.4 In the event of the dispute being referred to the courts under Clause 13.3 the parties agree that the Contract shall be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts.