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Client Terms of Business
1. Definitions  
1.1 In these terms and conditions the following words shall have the meanings given in this clause:
  "Client" the person, firm or company described as such overleaf or in the letter of engagement from the Company;
  "Company" Etetra Limited of 11 York Avenue, East Cowes, Isle of Wight PO32 6QY
  "Contract" the contract consisting of these Terms of Business and any quote, estimate, proposal or letter of engagement from the Company to the Client and concluded by either the Client signing a copy of the Proposal and/or these Terms of Business and returning it to the Company or the Company starting work on the Deliverables;
  "Deliverables" the services and/or materials to be supplied by the Company under this Contract, described in more detail in the Proposal or in the Quote;
  "Fee" the fee to be charged by the Company for the Deliverables and specified on the proposal or quote;
  "Intellectual Property Rights" all copyright, design rights (whether registered or unregistered), patents, rights in trade marks (whether registered or unregistered), database rights or other intellectual property rights in the Deliverables and in any materials and concepts created by the Company for the purpose of the production and supply of the Deliverables for the full term of those rights throughout the  world;
  "Proposal" the design and marketing engagement described in the written proposal, descriptions of the Deliverables and their intended use and any agreed times for the supply of Deliverables supplied by the Company;
  "Quote" the Company’s written quote for the Deliverables.
2. Provision of Services
2.1 The Company will use its reasonable care and skill in the production and supply to the Client of the Deliverables in accordance with the Proposal and/or the Quote and any other requirements identified in writing between the parties.
2.2 The Company reserves the right not to commence any work for the Client until the Proposal and the Fee have been agreed in writing by both Parties.
2.3 By signing a copy of the Proposal the Client warrants that the Proposal is accurate in all respects.
3. Financial Provisions
3.1 In return for the Company’s production and supply of the Deliverables the Client shall pay the Fee in accordance with the payment schedule agreed in the Proposal and/or Quote (and where no payment schedule is agreed the Company will invoice the Client on a monthly basis for work carried out and supply of Deliverables in that period).
3.2 Where the Proposal consists of separate and identifiable Deliverables, payment must be made in full to the Company following completion of each stage of the Proposal. The Company will not progress to the next stage until payment has been received.
3.3 The Company reserves the right to require the Client to pay the total Fee up front before the Company commences any work. If a final Fee has not been agreed at the time of concluding the Contract, the Company may require the Client to pay a percentage of the estimated total Fee in advance to cover the Company’s time attending meetings and/or producing Deliverables in advance of a final sign-off by the Client of the budget.
3.4 Payment must be made in full by the Client to the Company within 14 days from the date of the Company’s invoice.  All payments under this Agreement are exclusive of any applicable VAT which shall be payable by the Customer at the current rate against submission of a valid tax invoice.
3.5 If the Client fails to pay on the due date any amount which is payable to the Company then, without prejudice to the Company’s right to terminate or suspend the Contract, that amount shall bear interest from the due date until payment is made to the Company (both before and after any judgment) at 4% per annum over the Bank of England base rate from time to time.
3.6 The Company will, where practicable, endeavour to estimate extras such as printing, studio costs, outsourced technical work relating to website design and other external services to be used in relation to the Deliverables and include these in the Fee, but this will not always be possible. All other expenses related to a Proposal not included in the Fee will be invoiced by the Company at cost.  Where expenses are likely to be significant, the Company reserves the right to require the Client to pay the full amount of the expected expense in advance. General out of pocket expenses incurred in supplying the Deliverables, such as courier charges, traveling and hotel expenses (except where these have been agreed in advance as part of the Fee including, for example, attendance at monthly planning meetings with the Client), will be charged by the Company at cost.
4. Approvals
4.1 Where artwork or other material is sent to the Client for final approval, the Client shall check it carefully and notify the Company by e-mail, fax or post of any errors or alterations. The Company will use its reasonable endeavours to effect any changes so notified but the Company reserves the right to charge extra in addition to the Fee if any of these alterations either go beyond the original Proposal and/or Quote or are notified to the Company more than 3 working days after their supply to the Client. Where notification of errors or alterations is either delayed in this way or does not occur at all before publication, the Company will not be liable in respect of any such errors.
4.2 Written approval by or on behalf of the Client of final copy, designs and artwork will be the Company’s authority to proceed with production or publication as appropriate. It is the Client’s responsibility to advise the Company of the identity of those individuals who are duly authorised on behalf of the Client to give such authority.
5. Changes to Proposal and/or Deliverables
5.1 Any changes to the Proposal after the conclusion of the Contract, whether resulting from alterations by the Client, delay in providing the Company with materials, information, instructions or authorisations, supply of faulty materials to the Company by the Client or any other circumstances beyond the Company’s control, will be subject to extra charges for the Company’s time and work and may involve delays in supply. The Client will pay these extra charges and reimburse the Company for any third party charges or expenses incurred by the Company on the basis of the original Proposal.
5.2 If the Client wishes to modify the Proposal and/or the Quote then the Client shall notify the Company of its request in writing (a 'Change Request');
5.3 If a Change Request is received by the Company following final approval of the Proposal, but prior to any design work being undertaken, then within 5 working days of submission to the Company of a Change Request, the Company shall provide the Client with details of the effect of costs and timescales of the proposed change on the Proposal and/or the Quote and, following any additional discussion or negotiations if relevant, modifications to the Proposal, the Quote and/or the Fee shall be agreed in writing between the parties and the terms of such modification shall be incorporated into this Contract.
5.4 The Company may in its discretion on receipt of a Change Request following final approval of the Proposal and/or the Quote but prior to any design work being undertaken by the Company where such Change Request would require substantial modification to the original Proposal and/or the Quote decline to accept the Change Request and require the Client to enter into a new Contract.
6. Intellectual Property
6.1 The Client shall have a royalty free licence, coming into effect on payment of the full amount of the Fee and any other payments due to the Company, to use the Deliverables for the purposes, in the territories and in respect of the products or services defined in the Proposal and/or the Quote. Such licence shall terminate be automatically if the Client either:
6.1.1 does not pay the Fee in full by the due date; or
6.1.2 (being a company) passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect; or
6.1.3 (being a partnership or other unincorporated association) is dissolved or (being a natural person) dies; or
6.1.4 becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or
6.1.5 has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or
6.1.6 ceases, or threatens to cease, to carry on its business.
6.2 If the Client wishes to use the Deliverables in ways going beyond the scope of the Proposal and/or the Quote, it must approach the Company for prior written consent. In so far as the Deliverables involves use of third party material, the Company will secure such licence as is necessary to allow the required use of the same.
6.3 Subject to the above and to the rights of any third party, ownership of the Intellectual Property Rights shall remain vested in the Company unless and until any assignment or other disposition of the Intellectual Property Rights is agreed between the parties in writing. Any attempts by the Client to recreate concepts and/or artwork undertaken by the Company without the prior written consent of the Company is an infringement of the Company’s copyright and design right for the purposes of the Copyright Designs and Patents Act 1988.
6.5 The Client indemnifies (and will keep fully indemnified) the Company against any and all liability (including without limitation legal fees) incurred by the Company arising from proceedings, actions, claims or demands brought or made against the Company based upon any information or other work prepared for the Company by the Client.
6.6 If any Deliverables use any trade marks, trading styles or trade names ('Marks') owned by the Client or under its control, it is agreed that the Company shall have the right to use or allow use of any such Marks for the purpose of fulfilling the Company’s obligations under the Contract. The Company shall not gain any rights over such Marks by virtue of such use, but the Company shall be entitled to use the Marks both during and after the production and supply of the Deliverables to promote and advertise its own work.
6.7 It shall be the Client’s responsibility to ensure that all domain names used in connection with the Deliverables are wherever practicable properly registered and do not infringe any third party rights and that any Marks of the Client or any third party used in the Deliverables (including such Marks as are supplied by the Company in accordance with the Proposal) are used in a manner which neither diminishes the Client’s rights in its Marks nor infringes any third party rights.
6.8 The Client shall unless otherwise agreed mark all copyright and design work supplied as part of the Deliverables with the phrase “©etetra Limited”. The Company reserves the right to request the non-appearance or removal of this credit in any particular case. The Client shall comply with any such request within 30 days, but shall not thereby be obliged to make changes to material already produced or published.
6.9 Notwithstanding the licence granted in clause 6.1 above or any other disposition of the Intellectual Property Rights agreed between the parties, the Company shall have a continuing right to use the Deliverables for the purposes of advertising or otherwise promoting the Company’s work.
7. Confidential Information
7.1 Neither party shall divulge any confidential information which is supplied to it about the other party in the course of this Contract or any pre-Contract discussions, other than information forming part of the public domain otherwise than through a breach of this clause or any other obligation of confidence.
8. Delivery
8.1 If the Deliverables include any goods, then delivery of such goods shall be regarded as occurring when either 3 working days have elapsed following the day the Client has been informed that the goods are awaiting collection or, in cases where the Deliverables include delivery of the goods to the Client, on the day of delivery to the Client. If the Client is unable to collect the goods as provided for above, then the Company shall be entitled to arrange storage and/or transportation for the goods on the Client’s behalf at the Client’s expense. All charges for such storage, transport and any insurance shall be payable by the Client forthwith on request. The Client shall inspect and check the goods immediately on delivery and shall give the Company notice in writing by fax or post within 3 working days after the day of delivery as to any alleged defect together with details of the alleged defect. The Client will permit the Company to inspect any allegedly defective goods. Failing such notice, the goods shall be deemed to be in accordance with the Contract and the Client shall be deemed to have accepted the goods and to be liable to pay for them.
8.2 The risk in Deliverables shall pass to the Client upon the commencement of supply or transportation to the Client or, where the Client will not accept supply on the date required by the Company, to temporary storage arranged by the Company. Ownership of the Deliverables (other than the Intellectual Property Rights therein) shall pass to the Client on payment in full of all outstanding amounts due to the Company.
8.3 Where either delivery difficulties or other circumstances necessitate the Company electronically storing any part of the Deliverables for the Client’s future use, the Company reserves the right to levy storage charges and charges for retrieval from storage, which the Client shall pay within 14 days of the date of the relevant invoice.
8.4 Where Deliverables are supplied to the Client on CD-Rs, computer disks or other electronic storage method, then the Company remains the owner of these storage media and reserves the right to require immediate return of them. Should any artwork be supplied to the Client in digital form, the Client may not amend it or otherwise use it for purposes outside those contemplated by this Contract without the Company’s express prior written permission.
9. Compliance
9.1 It shall be the sole responsibility of the Client to ensure that the Deliverables comply with all local laws (whether consumer, public or civil), regulations and codes in all countries in which use is intended as stated in the Contract. It shall also be the Client’s responsibility to ensure that the Deliverables carry all disclaimers, warnings and public information which any competent lawyer of the Client in any of the relevant jurisdictions would advise.
9.2 The Client agrees to indemnify and hold harmless the Company and the Company’s agents and employees from any liability, cost, loss, damages award, sum payable by way of settlement or other expense of any kind (including reasonable legal fees) arising from any claim, demand or action alleging that the Deliverables or use of them are contrary to any law, code or regulation in any country.
10. Limitation of Liability
10.1 The Company accepts liability for loss arising from its own negligence or faults in the Deliverables (other than any liability for non-delivery or non-performance of any service by any third party involved in the production of the Deliverables) provided that the Company shall not be liable to the Client for any direct or indirect loss of business, contracts, profits or economic loss whatsoever arising from this Contract however the same may arise and whether occasioned by the negligence of the Company, its employees or agents or otherwise (except in respect of death or personal injury resulting from negligence).
10.2 The Company shall not be liable for the non-delivery or non-performance of any service provided by any third party and such the non-delivery or non-performance shall not give the Client any right to delay any payment due to the Company.
10.3 The total liability of the Company for any loss of the Client so arising in any year of this Contract in respect of any one event or series of connected events shall not exceed the Fee.
11. Termination
11.1 Either party may by notice in writing to the other terminate this Contract on giving to the other not less than 3 months’ prior written notice to the other at any time.
11.2 Either party may by notice in writing to the other terminate this Contract forthwith:
11.2.1 if the other party commits a breach of any of the terms of this Agreement and (if the breach is capable of remedy) fails to remedy the breach within 30 days of receipt of notice in writing requiring it to do so; or
11.2.2 upon the happening of one or more of the events described at clause 6.1.1 to 6.1.6 above.
11.3 Such termination shall be without prejudice to the parties’ accrued rights and liabilities, including the Company’s entitlement to payment for work done.
12. General
12.1 The Company acts in this Contract as a principal and not as agent for the Client.
12.2 The Company may sub-contract any or all of its rights or obligations hereunder and may with the Client’s consent, such consent not to be unreasonably withheld, assign the benefit and burden of its rights and obligations hereunder to any other entity. The Client may not sub-contract or otherwise delegate any of its obligations under this Contract without the Company’s consent, such consent not to be unreasonably withheld.
12.3 This Contract contains the entire agreement between the parties with respect to its subject matter, supersedes all previous agreements and understandings between the parties, and may not be modified unless expressed in writing and signed by the duly authorised representatives of the parties.  Except as expressly stated in this Contract the parties do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999.
12.4 Each party acknowledges that, in entering into this Contract, it does not do so on the basis of or rely on any representation, warranty or other provision except as expressly provided in this Contract, and accordingly all conditions, warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law.
12.5 If any provision of this Contract is held by any court or other competent authority to be void or unenforceable in whole or part, the other provisions of this Contract and the remainder of the affected provisions shall continue to be valid.
12.6 This Contract shall be governed by and construed in accordance with the laws of England and the parties shall submit to the non-exclusive jurisdiction of the English courts.

 

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