Conditions
1. Interpretation
1.1 Definitions: Acceptance Tests: the tests to be carried out by Yeomans on the Website as set out in clause 5.2.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges: the charges payable by the Client for the supply of the Services and/or the Products by Yeomans, as set out in Part 3 of the Agreement Details or the Order Confirmation. Client or you: the person, firm, company or organisation specified in Part 1 of the Agreement Details or the Order Confirmation.
Conditions: these terms and conditions set out in clause 1 to clause 13 (inclusive).
Contract: the contract between the Client and Yeomans for the supply of the Services in accordance with the Agreement Details or Order Confirmation and these Conditions.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.
Client Materials: all materials, information and software supplied by the Client to Yeomans.
Products: where applicable, all documents, materials, goods and software (including Website Software) developed or supplied by Yeomans or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation, data, and reports (including drafts), as summarised in Part 2 of the Agreement Details (and described more particularly in the Proposal) and all goods supplied by Yeomans as specified in the Order Confirmation.
Group: in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, 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 rights, topography 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.
Order Confirmation: where applicable, the order confirmation attached to these Conditions.
Project Agreement: the Project Agreement which outlines the project details and charges.
Proposal: Proposal document setting out the scope of the services that Yeomans are going to provide.
Services: the services, including without limitation any Products, to be provided by Yeomans pursuant to this Contract, as summarised in Part 2 of the Agreement Details and more particularly described in the Proposal.
Services Start Date: the day on which Yeomans is to start provision of the Services, as set out in the Agreement Details.
TBC: To be continued, where applicable to costs this shows that costs are as yet un-known
To Be Continued: See TBC
Website: the website at the url specified in the Agreement Details or the Proposal to be developed by Yeomans.
Website Software: the software for the Website.
Yeomans or we: Yeomans Press Limited (incorporated in the England and Wales with No. 05306145) whose registered office is at 3 Boyne Park Tunbridge Wells Kent TN4 8EN.
Yeomans’ IPRs: all Intellectual Property Rights subsisting in software, documents, information and materials that relate to the Services or the Products which existed prior to the commencement of the Contract.
1.2 Interpretation:
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) A reference to writing or written includes fax and e-mail.
2. Contract and duration
2.1 In the case where Yeomans issues a Proposal specifying the Services and Products to be supplied to you, clauses 2.2, 2.3 and 2.5 shall apply to the Contract. In the case where Yeomans issues an Order Confirmation specifying the Products to be supplied to you, clauses 2.4 and 2.5 shall apply to the Contract.
2.2 This Contract shall commence on the earlier of: (a) the date when it has been signed by both parties; or (b) the Services Start Date.
2.3 This Contract shall continue until completion of the Services in accordance with the Proposal, unless terminated earlier in accordance with its terms.
2.4 Your order for Products shall only be deemed to be accepted when Yeomans issues an Order Confirmation at which point and on which date the Contract shall come into existence.
2.5 Any quotation given by Yeomans shall not constitute an offer, and is only valid for a period of 30 days from its date of issue. For the avoidance of doubt, a quotation will only be deemed to be agreed where the Client has accepted the quotation in writing.
2.6 Where there are costs in addition to the Charges as set out in the Agreement Details or where such Charges are referred to as “TBC”, Yeomans shall provide the Client with an estimate for those costs and the Client shall have 30 days to agree the estimate in writing.
2.7 Only on receipt of the acceptance in writing, will the Client be deemed to have accepted and be liable for the additional costs.
3. Proposal
3.1 The Proposal (where applicable) shall be agreed in the following manner:
(a) Yeomans will prepare a proposal, setting out the requirements and specifications of the services which you require from Yeomans, including a description of what work is to be done, dates by which it is requested to be started and finished, Products, Client Materials required and such other information as Yeomans may request to allow Yeomans to prepare a draft Proposal;
(b) Yeomans shall, as soon as reasonably practicable, provide you with a draft Proposal;
(c) Yeomans shall discuss and agree the draft Proposal with you and when it has been agreed it shall become part of this Contract.
3.2 Once the Proposal has been agreed in accordance with clause 3.1 no amendment shall be made to it except in accordance with clause 12..
4. Supply of Services and Products
4.1 Yeomans shall, where applicable, supply the Services to you from the Services Start Date and shall supply the Products in accordance with this Contract.
4.2 In supplying the Services, Yeomans shall:
(a) perform the Services with reasonable care and skill; and
(b) use reasonable endeavours to perform the Services in accordance with the Proposal.
4.3 In supplying the Products and Services Yeomans shall:
(a) comply with relevant laws and regulations applicable to its performance of the Services, and delivery of the Products, provided that Yeomans shall not be liable under this Contract if, as a result of such compliance, it is in breach of any of its obligations under this Contract;
(b) use reasonable endeavours to meet performance dates for the Services and delivery of Products as specified in this Contract, but any such dates shall be deemed to be estimates only and time for performance by Yeomans shall not be of the essence of this Contract; and
(c) take reasonable care of all Client Materials in its possession and make them available for collection by you on reasonable notice and request, always provided that Yeomans may destroy the Client Materials if you fail to collect the Client Materials within a reasonable period after termination of this Contract.
(d) Yeomans shall ensure that any fundraising campaign that Yeomans designs, develops and/or implements as part of the Services shall, to the best of its knowledge, comply with all relevant fundraising laws and regulations, including (but not limited to) the Charities Act 1992 (as amended) and all relevant sections of the Code of Fundraising Practice.
(e) The Client acknowledges that whilst in Clause 4.3(d) Yeomans will to the best of it’s knowledge and ability offer these assurances, the ultimate responsibility for approval of any supplied Services lies with the Client and they should satisfy themselves that the product or service is fully compliant with all legislation as required.
4.4 Yeomans warrants to you that any Product shall:
(a) materially conform with any specification for such Product specified in the Proposal or Order Confirmation; and
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for purpose held out by Yeomans.
4.5 Any samples, drawings, descriptive matter or advertising issued by Yeomans and any descriptions, illustrations or descriptions of the Services or the Products contained in Yeomans’ website, catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Products described in them. They shall not form part of the Contract or have any contractual force.
4.6 Where applicable, Yeomans shall arrange for delivery the Products usually by standard next day courier to the location set out in the Order Confirmation or Proposal or such other location as the parties may agree in writing (Delivery Location). Delivery shall be deemed complete on the Products’ arrival at the Delivery Location.
5. Website terms
5.1 This clause 5 shall apply where the Services comprise in whole or in part the supply of a Website by Yeomans to you.
5.2 Once Yeomans has completed the design and development of the Website in accordance with the Proposal, Yeomans shall run appropriate tests to confirm functionality and conformity with the applicable terms of the Proposal (Acceptance Tests).
5.3 The Acceptance Tests shall test compliance of the Website with the Proposal. Acceptance of the Website shall occur when, in Yeomans’ reasonable opinion, the Website has passed the Acceptance Tests. Yeomans shall notify you when the tests have been passed.
5.4 If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of you, your systems or Client Materials (Defect), the Website shall be deemed to have passed the Acceptance Tests notwithstanding such Defect. Yeomans shall provide assistance reasonably requested by you in remedying any Defect by supplying additional services or products. You shall pay Yeomans in full for all such additional services and products at Yeomans then current fees and prices.
5.5 Acceptance of the Website shall be deemed to have taken place upon the occurrence of any of the following events:
(a) you use any part of the Website for any revenue-earning purposes or to provide any services or information to third parties other than for test purposes; or
(b) you unreasonably delay the start of the relevant Acceptance Tests or any retests for a period of seven working days from the date on which Yeomans is ready to commence running such Acceptance Tests or retests.
6. Client’s obligations
6.1 You agree to:
(a) co-operate with Yeomans in all matters relating to the Services;
(b) provide, in a timely manner, such information and data (including without limitation Client Materials) as Yeomans may require and ensure that it is accurate in all material respects;
(c) obtain all necessary licences and consents required in relation to Yeomans’ use of Client Materials; and
(d) comply with the Special Conditions (if applicable).
6.2 If Yeomans’ performance of its obligations under this Contract is prevented or delayed by any act or omission of you, your agents, subcontractors, consultants or employees, Yeomans shall:
(a) not be liable for any costs, charges or losses sustained or incurred by you that arise directly or indirectly from such prevention or delay;
(b) be entitled to payment of the Charges despite any such prevention or delay; and
(c) be entitled to recover any additional costs, charges or losses Yeomans sustains or incurs that arise directly or indirectly from such prevention or delay.
6.3 You acknowledge and agree that details of your name, address and payment record may be submitted to a credit reference agency, and personal data may be processed by and on behalf of Yeomans in connection with this Contract.
7. Intellectual property
7.1 Subject to payment of all Charges, Yeomans assigns to you (to the extent that it is able to do so), the Intellectual Property Rights and all other rights in the products of the Services (including the Products and where applicable the Website Software).
7.2 Yeomans and its licensors shall retain ownership of all Yeomans’ IPRs. You acknowledge that, where Yeomans does not own Intellectual Property Rights in information, software (including Website Software) or documents used in connection with the provision of the Services or the Products, your use is conditional on Yeomans obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle Yeomans to license or assign such rights to you. Where Yeomans is unable to gain the assignment or written licence (or sub-licence) the Client will be notified immediately.
7.3 Subject to payment of all Charges Yeomans grants to you, in each case to the extent it is able to do so, or shall procure the direct grant to you of, a fully paid-up, worldwide, non-exclusive, royalty-free, licence to copy Yeomans’ IPRs for the purpose of receiving and using the Services and the Products for the purpose contemplated by this Contract.
7.4 You grant Yeomans a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the purpose of providing the Services to you in accordance with this Contract and incorporation into the Products.
7.5 You shall keep Yeomans indemnified in full against any claims, costs, expenses and sums awarded by a court against Yeomans as a result of or in connection with any claim brought against Yeomans for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Client Materials by Yeomans for the purpose of providing the Services to you in accordance with this Contract.
7.6 Yeomans will keep the Client indemnified in full against any claims, costs, expenses and sums awarded by a court against the Client as a result of or in connection with any claim brought against the Client for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Materials supplied by Yeomans for the purpose of providing the Services to you in accordance with this Contract.
8. Charges and payment
8.1 You shall pay Yeomans the Charges in accordance with this clause 8.
8.2 All amounts payable by you exclude amounts in respect of value added tax (VAT), which you shall additionally be liable to pay to Yeomans at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
8.3 Yeomans shall submit invoices for the Charges plus VAT (if applicable) to you at the intervals specified in Part 3 of the Agreement Details or the Order Confirmation. In the event that invoicing intervals are not specified in Part 3 of the Agreement Details, Yeomans shall submit invoices for the Charges monthly in arrears, on or around the last day of each calendar month.
8.4 You shall pay each invoice submitted by Yeomans on the date specified in Part 3 of the Agreement Details or the Order Confirmation. In the event that payment dates are not specified in Part 3 of the Agreement Details or the Order Confirmation, you shall pay each invoice submitted by Yeomans within 30 days of invoice date.
8.5 Payment of all Yeomans’ invoices shall in each case be to a bank account nominated in writing by Yeomans in the currency specified in the Agreement Details or Order Confirmation.
8.6 If you fail to make any payment due to Yeomans under this Contract by the due date for payment or any other contract between you and Yeomans in respect of which payment is due, then, without limiting Yeomans’ remedies under clause 10:
(a) you shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.
(b) Yeomans may suspend all Services or supply of Products until payment has been made in full.
8.7 Ownership of the Products shall not pass to you until Yeomans receives payment in full (in cash or cleared funds) of all Charges payable under this Contract and any other contract between you and Yeomans in respect of which payment is due.
8.8 All amounts due under this agreement shall be paid by you to Yeomans in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9. Limitation of liability
9.1 Nothing in this Contract shall limit or exclude Yeomans’ liability for:
(a) death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by law.
9.2 Subject to clause 9.1, Yeomans shall not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Contract for:
(a) loss of revenue or anticipated revenue;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) any indirect or consequential loss.
9.3 Subject to clause 9.1, Yeomans’ total liability to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Contract shall be limited to a sum equal to the total Charges paid by you to Yeomans under this Contract.
(a) the limitation of liability shall not apply to any payment made as a result of a breach of the data processing agreement.
(b) the limitation of liability to the Client under this agreement is the total amount of the fees payable under this Contract.
9.4 The conditions implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 and sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from this Contract.
10. Termination
10.1 Without affecting any other right or remedy available to it, either party to this Contract may terminate it with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 15 Business Days after being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under this Contract has been placed in jeopardy.
10.2 Without affecting any other right or remedy available to it, Yeomans may terminate the Contract and any other contract between you and Yeomans with immediate effect by giving written notice to you if:
(a) you fail to pay any amount due under this Contract on the due date for payment and remains in default not less than 15 Business Days after being notified to make such payment; or
(b) there is a change of Control of you.
10.3 On termination of this Contract for whatever reason:
(a) you shall immediately pay to Yeomans all of Yeomans’ outstanding unpaid invoices and interest and, in respect of Services or Products supplied but for which no invoice has been submitted, Yeomans may submit an invoice, which shall be payable immediately on receipt;
(b) Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination; and
(c) Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
10.4 The Client may terminate this agreement if Yeomans does, or omits to do, anything which in the in the reasonable opinion of the Client is reasonably likely to damage the reputation of the Client.
10.5 Yeomans may terminate this agreement if the Client does, or omits to do, anything which in the reasonable opinion of Yeomans is reasonably like to damage the reputation of Yeomans.
10.6 In consideration to points 10.4 and 10.5 a meeting must be held at the offices of Yeomans to discuss the causes of the prevailing situation and only at the outcome of this meeting can either party withdraw from this agreement on the basis of points 10.4 and 10.5.
11. Confidentiality
11.1 Each party undertakes that it shall not at any time and for a period of 2 years after termination of this Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the Group to which the other party belongs, except as permitted by clause 11.2.
11.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11;
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Contract.
12. Changes to the Services or Products
12.1 If you wish to change the scope, nature or execution of the Services or Products, you shall submit details of the requested change to Yeomans in writing. Yeomans shall, within a reasonable time, provide a written estimate to you of:
(a) t he likely time required to implement the change;
(b) any necessary variations to Yeomans’ charges arising from the change;
(c) the likely effect of the change on the delivery of the Services or Products; and
(d) any other impact of the change on this Contract.
12.2 If you wish Yeomans to proceed with the change, Yeomans has no obligation to do so unless and until the parties have agreed the necessary variations to its charges, the Services, the Products and any other relevant terms of this Contract to take account of the change and this Contract has been varied in accordance with clause 13.4.
12.3 Notwithstanding clause 12.2, Yeomans may, from time to time and without notice, change the Services or Products in order to comply with any applicable statutory requirements, research or sample parameters provided that such changes do not materially affect the nature, scope of, or the charges for the Services and the Products.
12.4 Yeomans may charge for the time it spends assessing a request for change from you. These costs will be noted in the quotation as stated in clause 12.1 and will need to be agreed to by the Client prior to the commencement of any works as stated in clause 12.2.
13. General
13.1 Force majeure: Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
13.2 Assignment and other dealings:
(a) you shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Contract without Yeomans’ prior written consent.
(b) Yeomans may at any time, with prior written consent of the Client, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under this Contract.
13.3 Entire agreement:
(a) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
13.4 Variation: No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.5 Waiver: A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
(a) waive that or any other right or remedy; or
(b) prevent or restrict the further exercise of that or any other right or remedy.
13.6 Severance: If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Contract.
13.7 Notices:
(a) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.7(a); if sent by pre-paid first class post or other next working day delivery service, at 9.30 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
13.8 No partnership: Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
13.9 Third party rights: No one other than a party to this agreement shall have any right to enforce any of its terms.
13.10 Governing law: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
13.11 Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).