Quotations - Standard Terms and Conditions

DEFINITIONS

The following definitions and rules of interpretation apply in these terms and conditions (“Conditions”):

Commencement Date: the effective start date of the Contract is the date on which both Parties have signed this Agreement.

Contract: this Agreement once signed by both Parties.

Delivery Schedule(s): any dates or timeframes for delivery of part or all of the Services provided by MS to the Client, or requested dates or timeframes for the same requested by the Client to MS. All Delivery Schedule(s) shall be treated as estimates only and shall never be considered to be binding on either Party.

Document: includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.

IPRs: Intellectual Property Rights.

Party or Parties: MS and/or the Client as named in this Agreement.

Production Window: a period of time required for the completion of all or a part of the Services that has been booked into MS’ work calendar.

Project Assets: any materials to be delivered by the Client to MS that are necessary for MS to provide the Services, including but not limited to, images, artwork, brand guidelines, text, video files, API keys and integration documentation.

Services: the services to be provided by MS under the Contract, as described in section B of this Agreement or in any Document referenced within section B of this Agreement.

VAT: value added tax chargeable under English law for the time being and any similar additional tax.

1 THE CONTRACT

1.1 This contract shall be deemed to be an offer from the Client and shall only be deemed accepted by MS when counter signed by an authorised representative of MS and, in the case of payment by more than 1 instalment, following receipt in cleared funds of the first instalment.
1.2 The Conditions of this Contract contain the whole agreement between MS and the Client. Any other understandings, agreements, warranties, conditions, terms or representations, whether express or implied, statutory or otherwise, are excluded to the fullest extent permitted by law.
1.3 The Conditions of this Contract shall prevail over any inconsistent terms or conditions (whether express or implied) contained, referred to or contained in any purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by the Client, or that have been entered into between the Parties implied by law, trade custom, practice or course of dealing.
1.4 Headings in these Conditions shall not affect their interpretation.
1.5 A person includes a natural person, corporate or unincorporated body.
1.6 A reference to writing or written includes surface mail but not email unless the email has been replied to by the receiving Party with such reply containing the message trail and email headers intact.
1.7 Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce to that thing being done.

2 THE SERVICES

2.1 If the Client requires any variations or additions to the Services to those set out in this Agreement then the parties may agree an addendum to the Contract that supersedes the Services described in the Contract. The Client agrees that such changes may also require adjustments to the price and any Delivery Schedules.
2.2 Unless specifically stated otherwise in the Services, the writing, preparation and uploading of the website content and/or data by MS for the Client is not included.
2.3 MS reserves the right at any time and from time to time to amend, improve or correct the Services provided that such modification does not materially affect either party.
2.4 MS reserves the right to suspend the Client’s access to the Services on the occurrence of any of the following: (i) notified maintenance; (ii) issue by any competent authority of an order which is binding on MS and which affects the Services (written notice of such order and suspension to be given where reasonably practicable); (iii) if the Client fails to pay any amounts due under the Contract when they are due and following the issue of a formal default notice (see 2.4.1 below), or; (iv) if any events occur which would entitle MS to terminate the Contract as provided for in Clause 6 below.
2.4.1 Where MS reasonably believes that continuing the Client’s access to the Services during a written notice or default notice period would constitute a threat to the stability and continued security of MS’ systems, and only in such exceptional circumstances, MS reserves the right to temporarily suspend the Client’s access to the Services without notice until such threat has been mitigated.

3 DELIVERY OF THE SERVICES, DEADLINES, SCHEDULING & TIMELY RESPONSE

3.1 Time is not of the essence in delivery of the Services.
3.2 MS shall use its reasonable endeavours to provide the Services in accordance with, but does not warrant or guarantee that the Services will be completed by, any Delivery Schedule.
3.3 All Delivery Schedules given to the Client by MS are estimates and are not guaranteed. In the event that the Client prepares any marketing materials, enters into any agreements with a third party, or otherwise commits itself in any way to any activity that relies upon a Delivery Schedule being met by MS and that Delivery Schedule is not met by MS for whatever reason then the Client agrees to fully indemnify and keep MS, its subsidiaries, affiliates, officers, partners, employees and agents fully indemnified from and against all actions, demands, costs (on a full indemnity basis), losses, penalties, damages, liability, claims and expenses (including but not limited to legal fees) whatsoever incurred by it or them as a result.
3.4 MS shall schedule time as a Production Window for delivery of each aspect of the Services following the Commencement Date, and in the case of payment by more than 1 instalment, following receipt in cleared funds of the first instalment.
3.5 Circumstances may arise (including but not limited to staff absences, project overruns, server and infrastructure issues, power or connectivity outages etc.) that cause Production Windows to be rescheduled and MS reserves the right to adjust Production Windows as necessary under these circumstances but shall use its reasonable endeavours to keep the Client informed and to minimise disruption to the delivery of the Services wherever reasonably practicable.
3.6 At various points during the delivery of the Services, MS may require responses and/or Project Assets from the Client (or a third party nominated by the Client), such responses and project assets may include but are not limited to: feedback on designs or other visual artwork; sign-off at key stages; data and/or APIs necessary for any integration or functionality; login credentials for third party systems; licenses for images, videos, typography and third party APIs or payment gateways; content, including images, video and text; digital copies of and style guides for logos and branding; dates for meetings, video conferences and training, and; any other item critical to the timely completion of the Services.
3.6.1 In the event that a delay on the part of the Client (or a third party nominated by the Client) in providing responses and/or project assets prevents MS from completing a section of the Services which would ordinarily lead to the triggering of an instalment payment then the Client agrees that the MS may instead raise the instalment invoice at such point as its time logs indicate that the instalment would reasonably be due.
3.6.2 In the event that a delay on the part of the Client (or a third party nominated by the Client) causes a Production Window to be missed the Client agrees that a new Production Window will be assigned by MS based on its current queue of work on a first come first served basis and that this may have a significant impact to any Delivery Schedules for the Services.

4 PRICE & PAYMENT

4.1 The Client shall pay the price for the Services as set out in Section C above at the time when such payments become due.
4.2 Payment shall only be deemed received by MS upon receipt of cleared funds.
4.3 MS is under no obligation to extend credit terms to the Client, but where such terms are extended the Client agrees to make payments within the agreed credit terms.
4.4 It is the essence of the Contract that all amounts due from the Client to MS are paid on time. MS shall be entitled to recover from the Client any and all expenses incurred by MS in recovering overdue amounts and/or interest on overdue amounts (before and after judgement) at an annual rate of 8% above the base lending rate of the Bank of England, calculated daily until payment is made in full.
4.5 MS reserves the right to send overdue accounts to a collection agency, and to add its reasonable costs in so doing to the total amount owed to it by the Client.
4.6 Unless otherwise stipulated in section B or C of this Agreement, the final invoice for the Services shall become due once the Services have been completed as far as is reasonably possible and the Client agrees that such payment must be made prior to launch of any website or delivery to the Client of the Services.
4.6.1 Some minor elements of the Services by their nature may need to be completed after the launch of any website or delivery to the Client of the Services (for example, website analytics configurations and search engine optimisations), and MS warrants that it shall complete these as soon as reasonably practicable following the launch of any website or delivery to the Client of the Services, and the Client agrees that it may not withhold payment of any invoice in such situations.

5 INTELLECTUAL PROPERTY, LICENCE AND OWNERSHIP

5.1 Unless stipulated otherwise in the Services and subject to MS receiving payment in cleared funds from the Client for all amounts due under this Contract, all IPRs relating to the Services shall be assigned by MS to the Client as a present assignment of future copyright with full title guarantee, subject to the following exceptions:
5.1.1 the source code framework used to create any CMS provided in conjunction with the Services is and shall remain the property of MS, and;
5.1.2 any other design patterns or source code originated by MS which is included in the Services at the cost of implementation only and having a commercial value greater than the amount paid by the Client for such implementation in the Services, and;
5.1.3 any third-party materials used within the Services whether open source or available under a Creative Commons license, or whether licensed by MS or the Client on a royalty or royalty-free basis.
5.2 The Client may not reverse engineer, decompile, disassemble or otherwise attempt to derive source code from aspects of the Services where the IPRs are not held by the Client.
5.3 MS warrants that it owns all aspects of the Services where the IPRs are not assigned to the Client and that are not excluded under Clause 5.1.3 above and grants the Client a royalty free, perpetual licence to use these aspects of the Services.
5.4 No assignment of IPRs shall be made to the Client until MS has received in cleared funds all amounts due under this Contract.
5.5 Where the Services include a website containing elements where the IPRs are not assigned to the Client, and the Client wishes to host the website and/or these elements on a website hosting service other than that provided by MS, these elements of code must be encrypted and MS reserves the right to charge a fee for its reasonable costs for encryption of any such source code.

6 TERM, DURATION OF SERVICES AND TERMINATION

6.1 This Contract shall commence upon the Commencement Date and shall continue until terminated as provided for below, or until the Services have been completed and all amounts due to MS from the Client have been received in cleared funds.
6.2 Certain aspects of the Services may be delivered on a monthly, quarterly or annually recurring basis, (including but not limited to website hosting services, email hosting services, domain name management services) in which case the Conditions of this Contract shall remain in force for those specific aspects of the Services until such time as the Contract is terminated by either party giving to the other written notice of not less than one month, and the Client further agrees to pay all amounts due to MS for the provision of these aspects of the Services to the end of this notice period, and to forfeit any amounts paid to MS in advance that cover a period extending beyond the notice period.
6.3 Upon termination of the Contract by the Client prior to the Services being completed all amounts payable by the Client to MS under the Contract, with the exception of any recurring Services not yet commenced, shall become immediately due and MS shall be entitled to immediately cease provision of the Services.
6.4 The Contract may be terminated:
6.4.1 immediately by MS if the Client fails to pay any sums due under the Contract following the issuance of a formal default notice;
6.4.2 immediately by either party to the other if the other commits any material breach of any of these conditions and which (in the case of a breach capable of being remedied) has not been remedied within a reasonable time period as may be specified in a formal written request to remedy the same;
6.4.3 immediately by either party if the other shall convene a meeting with its creditors or if a proposal shall be made for a voluntary arrangement within part 1 of the Insolvency Act 1986 or a proposal or any other composition scheme or arrangement with (or the assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver or administrative receiver or similar officer is appointed in respect of all or any of the business or assets of the other party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or any other steps are taken for the winding up or the making of an administrative order (otherwise than for the purpose of a solvent amalgamation or reconstruction).
6.5 In the event of a material breach of the Contract by the Client that results in MS terminating the Contract, the Client agrees to forfeit any amounts already paid by it to MS under the Contract.

7 CONTRACT SUSPENSION / SUSPENSION OF DELIVERY OF THE SERVICES AND EARLY TERMINATION

7.1 The Client may request to suspend the Contract or the delivery of the Services by MS, and MS may agree to such a suspension at its sole discretion (but MS shall not be obliged to agree to any suspension request) in which case the following terms shall apply:
7.1.1 Where the Client can present evidence of extenuating circumstances wholly outside its control (including but not limited to severe health issues, trading hardships, acts of crime, natural disasters and other similarly severe circumstances) MS may consent to a suspension of not more than 12 months and at its sole discretion may request that time completed in delivering the Services to date is paid for at its normal hourly rate, subject to a maximum of the total Contract price and with any amounts already paid being first deducted from the total.
7.1.2 Where the Client requests a suspension due to a change in its business priorities, or for any other non-critical reason, MS may consent to a suspension of not more than 12 months providing that the Client pays for the time that MS has logged in respect of delivering the Services at its normal hourly rate, subject to a maximum of the total Contract price and with any amounts already paid being first deducted from the total. In addition, and providing the amount to be paid for the suspension plus the amounts already paid under the Contract amount to less than the total Contract price, the Client agrees to pay a suspension fee of up to 10% of the total Contract price with such fee being in addition to the total Contract price.
7.1.3 In the event of any dispute between MS and the Client regarding the amount of time logged or the suspension fees due, the matter shall be referred to an independent arbitrator whose decision shall be final and binding and whose fees shall be borne equally by the Parties.
7.2 The Client may request that the Contract be terminated prior to the completion of the Services by MS, and MS may agree to such a termination at its sole discretion (but MS shall not be obliged to agree to any such termination request) in which case the following terms shall apply:
7.2.1 In the event that MS has not yet commenced delivery of the Services, the Client agrees to forfeit any amounts already paid by it to MS and the Contract shall be terminated immediately.
7.2.2 In the event that MS has commenced its delivery of the Services, MS will multiply its time logged in respect of delivering the Services to date by its normal hourly rate, deduct any amounts already paid and at its sole discretion add an early termination fee of up to 25% of the total Contract price and the Client agrees to pay these amounts. Upon receipt of cleared funds from the Client by MS the Contract shall be terminated.

8 CONFIDENTIALITY

8.1 All confidential information belonging to either party or any of its customers disclosed to or discovered by the other as a result of the provision of the Services shall be regarded as disclosed in confidence and shall only be used in connection with the performance of its obligations under this Contract and not be passed on to any third party and/or in any way be made use of at any time either during or after the termination of this Contract save with the consent of the other or which comes into the public domain (otherwise than through the unauthorised disclosure by the other).
8.2 The Client shall promptly notify MS if it becomes aware of a breach of confidence in relation to the Services and/or the Contract and shall give MS all reasonable assistance in connection with any proceedings MS may institute against a third party at MS’s expense.

9 INDEMNITY

9.1 The Client agrees to fully indemnify and keep MS, its subsidiaries, affiliates, officers, partners, employees and agents fully indemnified from and against all actions, demands, costs (on a full indemnity basis), losses, penalties, damages, liability, claims and expenses (including but not limited to legal fees) whatsoever incurred by it or them and arising from any of the following: (i) the Client’s breach of the Contract or its negligence or other act, omission or default; (ii) the operation or break down of any equipment or software owned or used by the Client; (iii) the Client’s use or misuse of the Services, and; (iv) the Client infringing (whether innocently or unknowingly) third party rights (including without limit intellectual property rights).

10 LIMITATION OF LIABILITY

10.1 This Condition 10 sets out the entire financial liability of MS (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Client in respect of:
10.1.1 any breach of the Contract;
10.1.2 any use made by the Client of the Services, or any part of them, and;
10.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
10.2 Unless otherwise set out in this Contract, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Subject to Conditions 10.1 and 10.2, MS shall not be liable for the Client’s losses including:
10.3.1 loss of profits;
10.3.2 loss of business;
10.3.3 depletion of goodwill and/or similar losses;
10.3.4 loss of anticipated savings;
10.3.5 loss of goods;
10.3.6 loss of contract;
10.3.7 loss of use;
10.3.8 loss of, corruption or destruction of data or information;
10.3.9 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses, and;
10.3.10 any financial loss, including but not limit to financial losses as a result of criminal activity.
10.4 MS shall have no liability to the Client for any loss arising from any materials, data or instructions supplied whether digitally or otherwise by the Client or on its behalf which are incomplete, inaccurate, illegible, out of sequence or in the wrong form or arising from late arrival or non-arrival or any other fault by the Client or on its behalf.
10.5 Subject to Conditions 10.1 and 10.2, and with the exception of acts or omissions listed in Condition 9 above to which no limit of liability applieds each Party’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution, or otherwise arising in connection with the performance or contemplated performance, of the Contract shall be limited to the amounts paid under the Contract in the previous twelve-month period from the date of any claim made by either Party.

11 DISCLAIMER

11.1 Nothing in the Contract or these conditions shall exclude or limit the liability of MS for death or personal injury resulting from its negligence or fraudulent misrepresentation nor affect the statutory rights of consumers.
11.2 The Client acknowledges that the allocation of risk in the Contract reflects the price paid for the Services and that it is not within the control of MS how or for what purposes the Services are used. If any exclusion or limit of liability in the Contract is held to be invalid and MS becomes liable for loss or damage that may lawfully be limited, then such liability shall be limited to the amount paid to MS by the Client for the Services in the twelve months preceding the date of any such claim.
11.3 MS is not responsible for any delay, malfunction, non-performance and/or other degradation of performance of any of the Services caused by or resulting from any alteration, modification and/or amendments due to changes and specifications requested or implemented by the Client whether or not beyond those already supplied.
11.4 MS does not guarantee financial results, ranking positions, performance levels or the success of any marketing campaign, including but not limited to email marketing, search engine optimisation, paid search, content marketing, affiliate marketing, digital advertising, which it is requested to design, develop and/or manage in behalf of the Client. Any monies spent by the Client on any such marketing are entirely at the Client’s own risk. Any fees invoiced to the Client in by MS in respect of work completed on marketing campaigns shall be payable in full regardless of the outcome of such campaigns.

12 FORCE MAJEURE

12.1 If MS is prevented or delayed in or from performing any of its obligations under the Contract due to circumstances beyond its control such as but not limited to governmental acts, war, riots, strikes, or trade disputes (including by and with MS’ own employees), technical failure, general availability of the Internet, power failure, communications failure, weather, flood, fire or explosion, natural or local emergency, MS shall not be liable for this.

13 MISCELLANEOUS

13.1 Any failure or delay by MS in exercising any of its rights or remedies will not constitute a waiver.
13.2 Any notice or other communication to be given by a Party under this Contract must be in writing and must be given by delivery at or sending by first class post or by email to the last known postal or email address of the other party. Notices shall be deemed to have been received when in the ordinary course of the means of transmission it would be received by the addressee. To prove the giving of a notice it shall be sufficient to show it was despatched. A notice shall be effective from the sooner of its actual or deemed receipt by the addressee.
13.3 Except as expressly provided herein, the parties do not intend any term of this Contract to be enforceable by any third party pursuant to the Contracts (Rights of Third Parties) Act 1999.
13.4 Any termination of this Contract shall be without prejudice to any other rights or remedies which a party may be entitled to thereunder or at law and shall not affect any previous rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force upon or after such termination.
13.5 If any term of this Contract is held by any competent authority to be unlawful, invalid or unenforceable in whole or in part then the provision shall be deemed to be severable from the remaining provisions and shall not affect their validity or enforceability.
13.6 The Client shall not share, re-sell or attempt to share or re-sell the Services, transfer or attempt to transfer this Contract or permit any third party to use and/or access any of the Services for any purpose without the prior written consent of MS.
13.7 This Contract will be governed by English Law and the Client submits to the exclusive jurisdiction of the English Courts.