GENERAL TERMS & CONDITIONS
media8 supplies a wide range of Services. Some of the terms and conditions herein vary according to the Service specified in the Proposal.
1.1. In these Terms and Conditions the following definitions apply:
“media8” means media8 or any of its subsidiaries or Partners providing media8 related products and services;
“Partner” means an authorised partner of media8 who provides solutions that include media8 solutions, bound by a Partner agreement;
“Customer” means the individual or company to whom the invoice is addressed;
“Proposal” means the order form completed and signed by the Customer; this Proposal may refer to supporting documentation providing detail and scope for the project;
“Purchase Price” means the price for the Service as detailed in the Proposal;
“Service” means the goods or services specified in the Proposal;
“Software” means the software that is used to provide the Service;
“media8 CMS” means the website “Content Management System” owned by media8;
“Subscription” means the monthly charge specified in the Proposal for the ongoing provision of the software and support;
“Web Hosting” means the provision of a web service that responds to a browser’s request for web content with the content requested. It also includes the provision of any file hosting service accessible through FTP. It does not include other services such as domain management, email hosting and Internet connectivity to/from the Customer’s premises;
“First Line Support” means initial analysis and fault logging;
“Support Time” means (for WordPress website Services) the time spent assisting the Customer with issues related to the Software outside the scope of the Proposal, or following project sign-off. It includes administration time related to the issue, including but not limited to the time taken to log details of telephone calls;
“Confidential Information” for each party the terms of this Agreement and all information and/or data belonging to or relating to that party, its associates, its or their businesses, activities, affairs, products, services, suppliers, customers or prospective customers disclosed (whether in writing, verbally or by any other means and whether directly or indirectly) by that party, its representatives or advisers, to the other party, its representatives or advisers whether before, on or after the date of this Agreement;
“Deliverable” means a set of goods or services that may be delivered at one time, for example: a design draft, a collection of printed items, a marketing plan document, a consultation meeting, a website project or other electronic content;
“Event” means a Service delivered on a particular date, for example: a training course, a hospitality event, a speaker delivering a presentation, or a series of presentations;
“Business Day” means any day which is not a Saturday, Sunday or a bank or public holiday in England;
1.2. In these Terms & Conditions (except where the context otherwise requires):
1.2.1. the clause headings are included for convenience only and shall not affect the interpretation of these Terms & Conditions;
1.2.2. use of the singular includes the plural and vice versa;
1.2.3. use of any gender includes the other genders;
1.2.4. any reference to “persons” includes natural persons, firms, partnerships, companies, corporations, associations, organisations, governments, states, foundations, and trusts (in each whether or not having separate legal personality);
1.2.5. any reference to a statute, statutory provision or subordinate legislation (“legislation”) shall (except where the context otherwise requires) be construed as referring to:
a) such legislation as amended and in force from time to time and to any legislation which (either with or without modification) re-enacts, consolidates or enacts in rewritten form any such legislation; and
b) any former legislation which re-enacts, consolidates or enacts in rewritten form.
1.2.6. any phrase introduced by the terms “including”, “include”, “in particular”, “such as” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. Force Majeure
media8 shall not be liable for any delay or failure in performance of its obligations under this agreement which is due to or results from any circumstances beyond its reasonable control. In any such event media8 shall be entitled to delay or cancel delivery of the Service.
This agreement shall be governed and construed in all respects in accordance with the Law of England and shall be subject to the exclusive jurisdiction of an English Court of Law.
4.1. If any term or provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or in conflict with the law, the validity or enforceability of the remainder of this agreement shall not be affected thereby.
4.2. If any provision of this Agreement is found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid and enforceable.
No failure or delay by either party in exercising, wholly or partially, any of its rights with regard to any breach or default of this agreement by the other party shall constitute a waiver of such rights and no waiver of any such breach or default shall be deemed to constitute a waiver of any other rights or any subsequent or continuing breach of default.
The Customer may not sub-licence, assign, transfer or otherwise dispose of its rights under this Agreement or any part of it without the written consent of media8.
7.1. Any notice or other communication pursuant to this Agreement must be in writing and signed by or on behalf of the party giving it and may be served by pre-paid first class post to the address of the relevant party as set out in this Agreement, by fax or subject to the provisions of clause 7.2 by email. All such notices or demands shall be deemed to have been received:
7.1.1. in the case of pre-paid first class post two Business Days after posting; and
7.1.2. in the case of fax, at the time of transmission, provided that if receipt occurs before 9am on a Business Day the notice shall be deemed to have been received at 9am on that day, and if receipt occurs after 5pm on a Business Day, or on a day which is not a Business Day, the notice or demand shall be deemed to have been received at 9am on the next Business Day.
7.2. A communication sent by email shall not be effective unless the addressee acknowledges receipt of such communication, such acknowledgement to take the form of a reply email to include the communication being acknowledged.
8. The Proposal
8.1. media8 shall provide a Proposal to the Customer for each project. The Proposal forms part of this agreement.
8.2. The Customer assumes sole responsibility for ensuring that the Service described in the Proposal meets its requirements before signing the Proposal.
8.3. The Customer shall return the signed Proposal by letter, fax or email as described in clause 7. Upon receipt of this order acknowledgement, a contract shall be created between media8 and the Customer for the supply of the Service.
8.4. By purchasing the Service, the Customer acknowledges that they have read these Terms and Conditions, understands them and agrees to be bound by them.
9.1. The contract may not be cancelled following order acceptance unless a trial or rejection period has been agreed in advance. At the sole discretion of media8, a contract may be cancelled either wholly or in part subject to timing, and only once agreement in writing has been notified to the Customer according to clause 7.
9.2. For retained work billed monthly and where no contract period has been explicitly stated on the Proposal, the contract may be terminated by the Customer giving 3 months’ notice in writing according to clause 7.
9.3. Unless otherwise stated in the Proposal or subject to clause 9.1 and clause 9.2, the contract may not be cancelled except by agreement in writing of both parties and upon payment to media8 of such amount as may be necessary to meet the costs incurred to media8 up to the date of cancellation and to indemnify media8 against all loss resulting from the said cancellation.
9.4. The Customer shall have no right to seek any cancellation or repayment of job costs on the basis of style or composition.
10.1. During the period of this Agreement and for a period of 2 years after both parties undertake:
10.1.1. to keep the Confidential Information confidential;
10.1.2. not to use the Confidential Information for any purpose except the performance of its obligations under this Agreement; and
10.1.3. not to use the Confidential Information so as to procure any commercial advantage over the other party.
10.2. The obligations contained in clause 10.1 above shall not apply to any Confidential Information which:
10.2.1. is already in the possession of the disclosing party other than as a result of a breach of this Agreement;
10.2.2. is at the date of this Agreement or at any time after the date of this Agreement comes into the public domain other than through breach of this Agreement; or
10.2.3. is required to be disclosed by any applicable law or regulation or by any governmental or administrative authority or by an order of any court of competent jurisdiction.
10.3. Each party undertakes to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of Clause 10 by its employees, agents and sub-contractors.
10.4. The Customer agrees that the ideas, materials and other documents relating to the Service are confidential and all proprietary rights belong to media8 and shall not be used or disclosed except as permitted by this agreement.
10.5. This clause 10 shall survive the termination of this Agreement for whatever reason.
11. Intellectual Property Rights
11.1. Once full payment has been made and the deliverables have completed and signed off, the ownership of the rights to the deliverables created will pass to the Customer.
11.2. Third party materials, such as imagery, used in the deliverables may be subject to usage liabilities such as royalties and license fees. media8 shall procure such license as necessary for the use of third party materials for use within the scope of the Proposal. The Customer should obtain written consent from media8 for use of any part of the deliverables outside of the scope of the Proposal.
11.3. Unless otherwise stated in the Proposal, media8 reserves the continuing right to use any deliverables it produces for the promotion of its services.
11.4. Where the Proposal includes Software created by media8, media8 retains ownership of all copies of the Software and the Intellectual Property Rights (IPR) therein. The Customer has no rights to the Software or the IPR contained therein.
12.1. The following provisions set out the entire financial liability of media8 (including any liability for the acts or omissions of its employees, agents or subcontractors) to the Customer in respect of:
12.1.1. any breach of this Agreement; and
12.1.2. any representation, statement or tortious act or omission including negligence arising under or in connection with the contract.
12.2. Subject as expressly provided in these conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
12.3. Nothing in these conditions excludes or limits the liability of media8 for death or personal injury caused by negligence or for fraudulent misrepresentation.
12.4. Subject to clauses 12.2 and 12.3:
12.4.1. media8 shall not be liable to the Customer for any loss or damage, costs or expenses (whether direct, indirect, incidental or consequential and whether relating to loss of profit, loss of business, business interruption, loss of data, depletion of goodwill or other such losses), suffered by the Customer which arise out of or in connection with the supply of the Service or their use by the Customer.
12.4.2. The Customer assumes all risks as to the suitability, quality, and performance of the Service.
12.4.3. media8’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise arising in connection with the performance or contemplated performance of this contract shall be limited to, and in no event shall exceed, the amount originally paid to media8 for the Service.
12.4.4. media8 shall not be liable for any loss, damage or delay which arises as a result of the termination of the contract between us, or for our compliance with relevant statutory or regulatory requirements.
12.4.5. It is the responsibility of the Customer to ensure that the deliverables comply with all laws, regulations and codes in all countries where the deliverables are used. The Customer agrees to indemnify media8 against any costs arising from the use or misuse of the deliverables.
12.5. No verbal or written information or advice given by media8 or its dealers, distributors, employees or agents shall in any way extend, modify or add to these conditions.
13. Payment Terms and Pricing
13.1. Where a deposit is required, media8 is not obliged to carry out any work before the deposit is received. In the event that any preliminary work is carried out prior to receipt of the deposit and the order is then cancelled media8 will invoice the Customer for this work.
13.2. The Purchase Price is exclusive of VAT. VAT shall be charged at the prescribed rate at the date of invoicing. The Customer shall pay the VAT to media8 as if it were part of the Purchase Price and all requirements and other provisions concerning payment of the Purchase Price shall apply accordingly.
13.3. The Purchase Price, once accepted by both parties as signified by the receipt of a signed Proposal, is applicable for 12 months from the date of signing. media8 reserves the right to increase the price of any work outstanding after that period.
13.4. Prior to each payment due date, media8 shall issue an invoice to the Customer. Unless otherwise stated in the Proposal, each invoice is payable within 7 calendar days.
13.5. If the Customer fails to make payment on a due date then without prejudice to any other right or remedy available to media8, media8 shall be entitled to suspend or terminate the Service.
13.5.1. Should a payment be late by 30 or more days, media8 may suspend the Service.
13.5.2. Should a payment be late by 60 or more days, media8 may terminate the Service.
13.6. In the event that any payments due under these terms and conditions become overdue, interest on such amounts shall be payable by the Customer, from the due date to the actual date of payment, after as well as before any judgment, at the rate of 2% over the base lending rate for the time being of National Westminster Bank plc. Such interest shall accrue on a daily basis and be compounded quarterly.
13.7. In the event that any payments due under these terms and conditions become overdue, media8 reserves the right to add a fee of £20+VAT to cover the costs of administration of the debt.
13.8. All payments shall be paid in full without set off, deduction or counterclaim whatsoever.
13.9. Where any invoice includes a reduction due to an agreement to pay by Direct Debit or Standing Order, should the payment not be made by such means, media8 reserves the right to recharge the reduction.
13.10. media8 reserves the right to vary the Purchase Price according to further requirements made by the Customer subsequent to order acknowledgement. Any such variation shall be advised by media8 in writing and confirmed by the Customer in writing before either the work proceeds further or any charges are incurred.
13.11. Where the Proposal includes design work, unless otherwise stated in the Proposal, the Purchase Price includes an allowance for two sets of changes to each deliverable. Additional changes shall be charged at the prevailing hourly rate. Any such variation shall be advised by media8 in writing and confirmed by the Customer in writing before either the work proceeds further or any charges are incurred.
13.12. The charge for carriage of goods is at additional cost to the Customer, unless otherwise stated in the Proposal.
13.13. media8 reserve the right to charge expenses when fulfilling the work. Any mileage shall be charged at the rate of £0.45p per mile. No expenses shall be incurred without the Customer’s express written agreement.
14. Changes to Terms and Conditions
14.1. media8 reserves the right to change these Terms and Conditions at any time. The most current version of these Terms and Conditions may be found on our website.
14.2. When changes are made to the Terms and Conditions a notice shall be placed in our email newsletter. The Customer shall be deemed to have accepted such changes if they have not notified any objections to such changes within one calendar month of the notice.
14.3. The most current version of the Terms and Conditions shall supersede all previous versions.
15. Entire Agreement
15.1. This Agreement and the documents referred to in it, constitute the entire agreement and understanding of the parties and shall supersede any previous agreement between the parties relating to the subject matter of this Agreement. No variation of this Agreement shall be valid unless in writing signed by both parties.
15.2. Each of the parties acknowledges and agrees that in entering into this Agreement, and the documents referred to in it, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) which it may have relied on in entering into this Agreement. The only remedy available to it shall be for breach of contract under the terms of this Agreement. Nothing in this clause shall, however, operate to limit or exclude any liability for fraud.
Should you have any questions concerning these Terms and Conditions, contact media8 before submitting a signed agreement to any Proposal.
The Client acknowledges and agrees that details of the Client’s name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of media8 in connection with the Services.
media8 provides a variety of Marketing Services. Where the Proposal includes Marketing Services the clauses in Section F apply.
40. Payment Terms and Pricing
40.1. For printing and physical goods, unless otherwise stated in the Proposal, the Purchase Price shall be payable to media8 on receipt of the order acknowledgement.
40.2. For ad-hoc project work consisting of a single deliverable, unless otherwise stated in the Proposal, the Purchase Price shall be payable to media8 on receipt of the order acknowledgement.
40.3. For retained work billed monthly, unless otherwise stated in the Proposal, the agreed monthly element of the Purchase Price shall be payable to media8 by the first working day of the month, in advance of the work to be carried out.
40.4. For project work consisting of multiple deliverables, unless otherwise stated in the Proposal, the Purchase Price shall be payable to media8 as follows:-
40.4.1. 50% non-refundable deposit payable on receipt of the order acknowledgement; and
40.4.2. 25% upon the approval of the initial concept document.
40.4.3. 25% upon final completion / delivery / sign-off.
41. Deliverables Including Goods
41.1. Where a deliverable includes goods to be received by the Customer:
41.1.1. The passing of risk shall occur on the day of the delivery to the Customer.
41.1.2. If goods are received by the Customer in any way damaged upon delivery, the Customer must advise media8 within 24 hours of delivery of the nature of the damage and must retain the Goods as delivered.
41.1.3. The maximum extent of media8’s liability for damaged goods will be, at its sole discretion depending on the circumstances: a return of the Purchase Price related to the goods or replacement of the goods.
41.1.4. Goods remain the property of media8 and title remains with media8 until payment has been made in full.
41.1.5. All times or dates given for delivery of the Service are given in good faith and shall not be of the essence of any contract.
41.1.6. media8 shall make every effort to achieve any quoted delivery dates and execute any obligations set out in the Proposal but will not be under any liability if delivery is delayed or prevented by events beyond its control or as a result of delays by the Customer.
NO PARTNERSHIP OR AGENCY
Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any
representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
RIGHTS OF THIRD PARTIES
The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
1. The definitions and rules of interpretation in this clause apply in these terms and conditions (Conditions).
Account Handler: media8’s account handler for a Project
Contract: the Client’s purchase order and media8’s acceptance of it, or the Client’s acceptance of a quotation for Services by media8.
Client’s Manager: the Client’s manager for the Project.
Document: includes, 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.
In-put Material: all Documents, information and materials provided by the Client relating to the Services including, the in-put materials specified in the Project Plan.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Pre-existing Materials: all Documents, information and materials provided by media8 relating to the Services which existed prior to the commencement of Contract including computer programs,
data, reports and specifications and the pre-existing materials specified in the Project Plan.
Project: a project as described in a Project Plan.
Project Plan: the details describing the Project, the estimated timetable and responsibilities for the provision of the Services as contained within media8’s interpretation of the Brief document, estimate and key stage schedules.
Services: the services to be provided by media8 under a Project Plan together with any other services which media8 provides or agrees to provide to the Client.
Agency’s Manager: media8’s manager for a Project.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1. Condition and paragraph headings shall not affect the interpretation of these conditions.
2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns. include the plural and vice versa.
3. A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
4. A reference to writing or written includes faxes but not e-mail.
5. Where the words include(s), including or in particular are used in these terms and conditions, they are deemed to have the words without limitation following them and where the
context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
6. Any obligation in the Contract on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
7. References to conditions are to the conditions of this agreement unless stated to the contrary.
APPLICATION OF CONDITIONS
1. These Conditions shall:
(a) apply to and be incorporated into the Contract; and
(b) prevail over any inconsistent terms or conditions contained, or referred to, in the Client’s purchase order, confirmation of order, acceptance of a quotation or specification, or implied by law, trade custom, practice or course of dealing. 2.2 The client’s purchase order, or the Client’s acceptance of a quotation for Services by media8, constitutes an offer by the Client to purchase the Services specified in it on these Conditions. No offer placed by the Client shall be accepted by media8 other than:
(a) by a written acknowledgement issued and executed by media8; or
(b) (if earlier) by media8 starting to provide the Services,
when a contract for the supply and purchase of those Services on these Conditions will be established. The Client’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.
2. Quotations are given by media8 on the basis that no Contract shall come into existence except in accordance with condition
3. Any quotation is valid for a period of 30 days from its date, provided that media8 has not previously withdrawn it.
COMMENCEMENT AND DURATION
1. The Services supplied under the Contract shall be provided by media8 to the Client from the date of acceptance by media8 of the Client’s offer in accordance with the date specified in the Project Plan.
2. The Services supplied under the Contract shall continue to be supplied until the Project is completed in accordance with the Project Plan unless the Contract is terminated in accordance these terms and conditions.
1. Project Plans shall be agreed in the following manner:
(a) the Client shall provide media8 with a project brief, setting out the requirements and specifications of the services which it is requesting from media8, including a description
of what work is to be done, dates by which is requested to be started and finished, In-put Materials and such other information as media8 may request to allow media8 to
prepare a draft Project Plan;
(b) media8 shall, as soon as reasonably practicable, provide the Client with a draft Project Plan; and
(c) media8 and the Client shall discuss and agree the draft Project Plan and when it has been agreed, they shall both sign a copy of it and it shall become a Schedule to and subject
to these Conditions.
2. media8 shall charge for the preparation of the Project Plan on a time and materials basis in accordance with payments and charges.
3. Once the Project Plan has been agreed and signed, no amendment shall be made to it.
1. media8 shall use reasonable endeavours to provide the services, to the Client, in accordance in all material respects with Project Plan.
2. media8 shall appoint the Account Handler in respect of each Project who shall have authority contractually to bind media8 on all matters relating to the Services. media8 shall use reasonable endeavours to ensure that the same person acts as the Account Handler throughout the term of the Project, but may replace him from time to time where reasonably necessary in the
interests of media8’s business.
1. The Client shall:
(a) co-operate with media8 in all matters relating to the Services and appoint the Client’s Manager in relation to each Project, who shall have the authority contractually to bind the Client on matters relating to the Services;
(b) provide, in a timely manner, such In-put Material and other information as media8 may request and ensure that it is accurate in all material respects;
(c) provide prompt and timely feedback in relation to the Services when so requested by media8.
2. If media8’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, sub-contractors or employees, media8 shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.
3. The Client shall be liable to pay to media8, on demand, all reasonable costs, charges or losses sustained or incurred by media8 (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to media8 confirming such costs, charges and losses to the Client in writing.
4. The Client shall not, without the prior written consent of media8, at any time from the date of the Contract to the expiry of six months after the last date of supply of the Services, solicit or entice away from media8 or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of media8 in the provision of the Services.
5. Any consent given by media8 in accordance with condition
6. shall be subject to the Client paying to media8 a sum equivalent to 20% of the then current annual remuneration of media8’s employee or sub-contractor or, if higher, 20% of the annual remuneration to be paid by the Client to that employee or sub-contractor.
CHANGING THE SERVICES
1. If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.
2. If either party requests a change to the scope or execution of the Services, media8 shall, within a reasonable time, provide a written estimate to the Client of:
(a) the likely time required to implement the change;
(b) any variations to media8’s charges arising from the change;
(c) the likely effect of the change on the Project Plan; and
(d) any other impact of the change on the terms of the Contract.
3. media8 may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.
4. media8 may, from time to time and subject to the Client’s prior written consent, which shall not be unreasonably withheld or delayed change the Services.
5. If the Client wishes media8 to proceed with the change, media8 has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Project Plan and any other relevant terms of the Contract to take account of the change.
6. media8 may charge for its time spent in assessing a request for change from the Client on a time and materials basis in accordance with condition 8.