STANDARD TERMS AND CONDITIONS
In these conditions Merci Visual Limited trading as Merci Visual
is referred to as “the Company”, which definition shall include its licensees, contractors, and/or assigns, as the context may permit. “The Client” means the person, firm, company or other body placing orders with the Company.
1. Applicability of conditions The Company provides facilities and services only on the basis of these conditions which shall apply to all bookings, however made or accepted, and shall form part of every contract between a Client and the Company, except insofar as otherwise expressly agreed in writing by a director of the Company acting on its behalf.
2. Extent of Company’s Responsibility The Company’s responsibility is restricted to providing facilities and services for production and post production. In particular, except as may be otherwise agreed in writing by a director of the Company acting on its behalf, the Company’s responsibility does not extend to any matter normally falling within the province of a director or producer of any film, still photography shoot, television programme, commercial, content campaign, music video, or other audiovisual project. The Client is responsible for ensuring that any digital file, photograph, film, video tape or computer programme is correct and complete in all respects as regards both form and content before use is made thereof or the same is removed from the Company’s premises (whichever is the earlier).
3. Bookings, Cancellations, and Contract Formation a. Bookings may be made either by telephone or email or by letter or by fax. Every booking shall be subject to these conditions of trading and shall be at rates shown in the Company’s estimate issued before or at the time of booking. The Company shall have the absolute right to change its prices at any time without prior notice. b. If notice of cancellation of a booking is received by the Company less than two working days prior to the scheduled work time, the booking will be charged at full rate. If notice of cancellation is received more than two working days but less than seven days prior to the scheduled start time a charge of 50% of the full rate will be made. If notice of cancellation is received more than seven working days but less than fourteen days prior to the scheduled start time a charge of 25% of the full rate will be made. No charge shall be made for cancellations received fourteen days or more prior to the scheduled start time. For the purpose of this condition the scheduled start time will be the hour at which any equipment or personnel of the Company or its sub contractors is first scheduled for operational use in connection with a booking by a Client. Working days are Monday to Friday inclusive, but excluding any statutory Public Holidays. For the purposes of notification of cancellation a day is twenty-four hours (i.e. to give two days notice of cancellation we require forty-eight hours notice). In addition to any cancellation charge under sub-clause 3.2 above, the Company shall in the event of cancellation (whenever occurring) be entitled to charge the Client for any amounts payable to third parties in connection with the booking. d. Cancellations of any bookings will only be effective if given in writing or email by the Client. e. The Company reserves the right to cancel any booking whether or not any services in connection therewith have been provided by the Company in the event that the Company in its absolute discretion considers a Client’s material is or might be offensive or obscene or that the copying or other reproduction thereof might infringe the rights of any third party or be otherwise illegal. f. Nothing herein shall constitute a penalty and the parties hereby acknowledge and agree that the cancellation charge referred to herein is a fair and proper assessment of the Company’s loss. g. All goods, services and facilities offered by the Company are subject to these Terms and Conditions, and no servant or agent of the Company has the right to vary these Terms and Conditions verbally or otherwise or to make any warranties and/or representations on behalf of the Company other than as expressly set out herein. h. These Terms and Conditions shall be incorporated into any contract between the Company and the Client to the exclusion of any terms of business of the Client. Any dealings with the Company following receipt of a copy of these terms and Conditions or link to the site from which they can be downloaded shall be deemed to be an acceptance by the Client of these Terms and Conditions. i. Unless otherwise accepted by the Company in writing, any quotation or estimate issued by the Company shall be an invitation to treat. Any order by the Client following any such estimate or quotation shall be an offer, and a binding contract shall arise between the Company and the Client only upon the Company’s clear and unconditional acceptance of the Client’s order.
4. Payment a. Subject to the further provisions contained in this condition the Client shall unless otherwise expressly agreed in writing by the Company pay for the facilities and services supplied to them at the rates shown in the relevant estimate. b. All the payments shall be made within twenty-eight days from the date of the invoice. The Company reserves the right to require any Client to make full or part payment prior to the performance of the booking by the Company. c. In the event of default in payment by the Client the Company shall be entitled without prejudice to any other right or remedy to suspend any further performance of or deliveries under any contract or contracts between the Company and the Client without notice. d. In the event of late payment (or non payment) the Company is entitled at its sole discretion to charge interest on any amount outstanding at the rate of 4% above the base rate of Barclays Bank plc from time to time from the due date of payment. e. The Client agrees to pay for any additional services supplied by the Company which are not described in the estimate at the price listed for such services in the Company’s rate card and where no such price exists at cost plus 25%. f. Unless the client has established a valid credit facility with the Company, no deliverables, masters or rights in any project shall be released without the prior settlement of any outstanding payment. g. All fees will be subject to VAT at the applicable rate which will be added to any request for payment.
5. Performance, Delivery or Collection a. Unless otherwise agreed in writing, all times quoted for performance or delivery or availability for collection are given in good faith but are not guaranteed by the Company. The time for performance or delivery or availability for collection shall in every case be dependent upon prompt receipt of all necessary information, final instructions or approvals from the Client. Alteration by the Client of its requirements may result in delay in performance, delivery and/or availability for collection for which the Company shall bear no liability. b. Any packaging supplied by the Company, unless otherwise expressly agreed, is intended to provide adequate protection throughout normal conditions of transport by the means specified in the agreement or as otherwise agreed. If the Client (or the intended recipient) fails to take delivery on the agreed date or to collect on the agreed collection date, or if no specific delivery or collection date has been agreed, when the goods are ready for dispatch the Company shall be entitled to store the goods and to charge the Client the reasonable cost of doing so, and to tender its account for such charges to the Client, provided that in no event shall the Company be under any liability in respect of any loss or damage following the dispatch of any goods from the Company’s premises. c. If the Client and the Company agree that any goods shall be delivered electronically r via any form of telephony (this constituting in each case a “Direct Delivery”), the following provisions shall apply, as relevant: i. The Client acknowledges that Direct Delivery is not or may not be a completely secure medium of communication and that a unauthorised third party may intercept, tamper with or delete goods delivered by Direct Delivery, and that Direct Delivery may involve reliance upon third party data carriers over which the Company has no control; and ii.The Company shall have no liability to the Client or any third party for: 1. Any delay to any Direct Delivery or any non-receipt of goods delivered by Direct Delivery; 2. Any loss or damage resulting from any person gaining unauthorised access to any Direct Delivery of any goods; 3. Use or disclosure of any data obtained by any third party as a result of the same having gained unauthorised access to any Direct Delivery; and 4. Any loss or damage resulting from any malfunction of or the introduction of any viruses, worms, logic bombs, time locks, time bombs, Trojan horses and/or bugs to any equipment and/or software used to effect and/or receive any Direct Delivery.
6. Limitation of Liability a. The Company shall not be liable for any loss or damage to any property of the Client while held at the Company’s premises, including (without limitation) any digital files, photographs, rushes and any kind of footage, whether supplied on hard drive, film or tape, howsoever arising, unless caused by the negligence or breach of duty of the Company or its employees, agents or sub-contractors in which event the provisions of paragraph 5.f below will apply. b. All implied conditions and warranties, statutory or otherwise are hereby excluded. c. The Company shall not be liable in any circumstances for any loss of profit or other consequential loss suffered by the Client arising from work undertaken by the Company. d. The Client shall at times be liable to the Company and to those claiming through the Company for: i. Any injury to or death of any of the Company’s employees; and ii. any loss, damage or personal injury of any kind suffered by any third party, where such loss, damage or injury is occasioned by or arises out of any act or omission of the Company or its employees agents or sub-contractors as a result of carrying out the instructions of the Client, whether or not such injury, death, loss or damage arises as a result of any negligence on the part of the Company or its employees, agents or sub-contractors. The Client shall indemnify the Company against all claims, proceedings, actions and costs in respect of such loss, damage or injury howsoever occasioned at any location whatever. e. If the Company is unable to provide any of the services, facilities or goods agreed to be provided by the Company to the Client due to circumstances beyond its control (including but not limited to industrial action by any person or persons whether or not employees of the Company) the Company shall not be liable for any loss suffered or any sum payable by the Client as a result thereof. In the event of a breakdown or stoppage or defective working of any equipment hired to the Client or used as part of the services provided to the Client then the Company will use its reasonable endeavours to remedy the same without delay. In respect of any period during which the Client is thereby prevented from making use of the facilities or services supplied to him the Client shall be entitled to a proportionate remission of the charges payable in respect of such facilities or, at the option of the Company, shall supply the equipment, without additional charge, for a period of time equivalent to that during that which the Client shall have been prevented from using the equipment. Save as aforesaid the Company shall be under no liability whatever in respect of such breakdown or stoppage or defective working or other failure to perform its obligations. f. No employee of the Company is entitled to make representations on behalf of the Company and the Client shall be entitled to rely only on representations made in writing by a director of a Company on its behalf. g. In the event of any loss or damage to any property of the Client being occasioned by the negligence or breach of duty of the Company, its employees, agents or subcontractors the liability of the Company under this Agreement or in law shall be limited to the Post Fee in aggregate.
7. Indemnities by Client The Client shall fully indemnify the Company or (where relevant) its sub-contractors, agents or employees from and against all actions, proceedings, claims, demands, damages, fees, costs, losses and expenses or other liabilities made against or incurred or suffered by the Company or its sub-contractors, agents or employees by reason of or in respect of: a. any infringement of copyright or trademark or any passing off or any other infringement of or interference with any proprietary right or interest of any third party or any civil or criminal action or prosecution for defamation or obscenity or for any breach of confidence or misuse of any confidential information arising out of any work carried out by or on behalf of the Client. b. Any breach by the Client of any of these conditions. c. any personal injury or death or loss or damage to property caused by or arising out of or in connection with the use by the Client of any facilities provided by the Company except where the same is attributable to the negligence or breach of contract of the Company or its servants, agents or sub-contractors. d. any breach by the Company, its sub-contractors, agents or employees of its or their obligations under any contract with the Client or any negligent act or omission of the Company its sub-contractors, agents or employees resulting in loss, damage or injury to the Client, its agents, sub-contractors or employees, or in any costs or expenses payable by the Client, its agents, sub-contractors or employees
8. Insurance For the avoidance of doubt, the Client agrees and acknowledges that the Company is not providing to the Client the benefit any insurance, beyond any specifically required by law, with respect to any risks that might arise out of or as a result of the use by the Client of the Company’s facilities or services and any consequential risks that might rise from it.
9. Relationships The Client agrees not make an approach to any Company sub-contractors, agents or employees with a view to contracting with the sub-contractors, agents or employees of the Company directly to work independently of the Company.
10. Screen Credits For any material where screen credits are incorporated, credit must be given to The Company and relevant staff or as otherwise agreed.
11. Retention of Title The Company shall retain title to and legal and beneficial ownership of any photograph, film, video tape and/or computer programme and/or other deliverable (the “Deliverables”) produced by it until all fees relating to the Company have been paid in full. The Company reserves the right to demand payment in full when any such film, video tape or computer programme is removed by the Client from the Company’s premises. If the Company is owed any amount which has been outstanding for 365 days or more the Company shall be entitled to seek to sell its interests in any Deliverables as granted by this clause to any party in order to recover its outstanding debts from the Client. After deducting all costs and other amounts due to the Company, any amount remaining from any such sale shall be repaid as soon as practically possible to the Client.
12. General a. The Client shall observe the provisions and requirements of all applicable trade union agreements and shall indemnify the Company against any costs, expenses and/or loss incurred by it as a result of any failure by the Client to do so. b. Headings used in this agreement are purely for ease of reference and do not form any part of or affect the interpretation of this agreement. c. If any provision of this agreement shall be adjudicated by a court to void or unenforceable, the same shall in no way affect any other provision of this agreement or the validity or enforceability of this agreement, and the other provisions of this agreement shall remain valid and binding between the parties. d. This agreement contains the entire agreement between the Company and the Client with respect to its subject matter, and supersedes all previous agreements and understandings between the Company and the Client, and it may not be modified except by another instrument in writing duly signed by the authorised representatives of both parties. e. The parties agree and confirm that it is not their intention that any third party be entitled to enforce any term of this agreement which may confer a benefit upon that third party, whether such entitlement would, but for this Clause 12(e), arise under the Contracts (Rights of Third Parties) Act 1999 or otherwise. f. Unless otherwise notified to the Company in writing, the Client shall allow the Company to use any and all finished projects for its own PR and marketing purposes after the date of first transmission to the public in any media.
13. Law This agreement shall be interpreted in accordance with the laws of England and the parties agree to the jurisdiction of the English Court.
Website Development Specific Mutual Agreement
We will always do our best to fulfil your needs and meet your goals, but sometimes it’s best to have a few things written down so that we both know what’s what, who should do what and what happens if stuff goes wrong.
In this contract you won’t find complicated legal terms or long passages of unreadable text. We have no desire to trick you into signing something that you might later regret. We do want what’s best for the safety of both parties, now and in the future.
You (COMPANY) are hiring us (Merci Visual Ltd) located at Unit 2The Auction Rooms, 28 Gloucester St, Brighton BN1 4EW to maintain the website for the estimated total price as outlined in our Estimate. Of course it’s a little more complicated, but we’ll get to that.
What Do Both Parties Agree To Do?
As our customer, you have the power and ability to enter into this contract on behalf of your company or organisation. You agree to provide us with everything that we’ll need to complete the project – including text, images and other information – as and when we need it and in the format we ask for.
You agree to review our work, provide feedback and approval in a timely manner too. Deadlines work two ways and you’ll also be bound by any dates that we set together. You also agree to stick to the payment schedule set out at the end of this contract.
We have the experience and ability to perform the services you need from us and we will carry them out in a professional and timely manner. Along the way we will endeavour to meet all the deadlines set but we can’t be responsible for a missed launch date or a deadline if you have been late in supplying materials or have not approved or signed off our work on-time at any stage.
On top of this we’ll also maintain the confidentiality of any information that you give us.
Getting Down to the Nitty Gritty
If we are designing your application we’ll create designs for the look-and-feel, layout and functionality of your website. This contract includes one main design plus the opportunity for you to make up to two rounds of revisions. If you’re not happy with the designs at this stage, you will pay us in full for all of the work that we have produced until that point and you may either cancel this contract or continue to commission us to make further design revisions at our standard design rates.
HTML and CSS Layout Templates
If the project includes HTML markup and CSS templates, we’ll develop these using valid HTML and CSS code.. The landscape of web browsers and devices changes regularly and our approach is to look forward, not back. With that in mind we will test all our markup and CSS in current versions of all major desktop browsers to ensure that we make the most from them. Users of older or less capable browsers or devices will experience a design that is appropriate to the capabilities of their software.
We do not cater for people using Microsoft Internet Explorer 6 and cannot predict the behaviour of that browser. We will also test that these templates perform well on Apple’s iPad. We will not test old or abandoned browsers, for example Microsoft Internet Explorer 6 or 5.5 for Windows or Mac, previous versions of Apple’s Safari, Mozilla Firefox or Opera unless otherwise specified. If you need us to consider these older browsers, we will charge you at our standard old browser rate for any necessary additional design work, development and testing.
We may have written a hundred blog posts but we’re not responsible for writing or inputting any text copy unless we specified it in the original estimate. We’ll be happy to help though, and in addition to the estimate we will charge you at our standard copy writing or content input rate.
You will supply us photographs in digital format. If you choose to buy stock photographs we can suggest vendors of stock photography. Any time we spend searching for appropriate photographs will be charged at our standard discovery rate.
Changes and Revisions
We know from plenty of experience that fixed-price contracts are rarely beneficial to you, as they often limit you to your first idea about how something should look, or how it might work. We don’t want to limit either your options or your opportunities to change your mind. The estimate/quotation prices at the beginning of this document are based on the amount of work we estimate we’ll need to accomplish everything that you have told us you want to achieve. If you do want to change your mind, add extra pages or templates or even add new functionality, that won’t be a problem. However, you will be charged accordingly and these additional costs will need to be agreed to before the extra work commences.
This additional work will affect deadlines and they will be moved accordingly. We’ll be up front about all of this if and when it happens to make sure we’re all on the same page before proceeding.
We may also ask you to put requests in writing so we can keep track of changes. If the nature or functions of the project change significantly throughout the process, we reserve the right to deem the current project cancelled. At this point you will pay us in full for all the work we have done and may commission us to complete the new project based on the new requirements. This will require a new quote and contract.
You may already have professional website hosting, you might even manage that hosting in-house; if that’s the case, great. If you don’t manage your own website hosting, or your current hosting environment does not support the solution we are providing, we can set up an account for you at one of our preferred, third-party hosting providers. We will charge you a one-off fee for installing your site on this server, plus any statistics software such as Google Analytics, then the updates to, and management of that server, plus any support issues will be up to you. We are not a website hosting company and so do not offer or include technical support for website hosting, email or other services relating to website hosting.
We can’t guarantee that the functions contained in any web page templates or in a completed website will always be error-free and so we can’t be liable to you or any third party for damages, including lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate this website and any other web pages, even if you have advised us of the possibilities of such damages. If any provision of this agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions. Phew!
You guarantee to us that any elements of text, graphics, photos, designs, trademarks, or other artwork that you provide us for inclusion in the website are either owned by your good selves, or that you have permission to use them. When we receive your final payment, copyright is automatically assigned as follows: You own the graphics and other visual elements that we create for you for this project. We’ll give you a copy of all files and you should store them really safely as we are not required to keep them or provide any native source files we used to make them. You also own text content, photographs and other data you provided, unless someone else owns them. We own the markup, CSS and other code and we license it to you for use on only this project. We love to show off our work and share what we have learned with other people, so we reserve the right to display and link to your completed project as part of our portfolio and to write about the project on websites, in magazine articles and in books about web design.
We are sure you understand how important it is as a small business that you pay the invoices that we send you promptly. As we’re also sure you’ll want to stay friends, you agree to stick tight to the following payment terms. • Payment term is 14 days from issue of an invoice. NB: If you are unable to supply all of the right content at this stage, it does not mean we have not done our job. Once the site has been tested and is ready to go live, either with your content or placeholder images and dummy text, we will issue the final invoice. Once the final invoice is paid we will hand over the keys and show you how to put your own content in once it’s ready. If the final invoice is not paid within the credit terms we have given you, we are under no obligation to keep the site on our testing server or continue with the project in anyway.
But where’s all the horrible small print?
Just like a parking ticket, you can’t transfer this contract to anyone else without our permission. This contract stays in place and need not be renewed. If for some reason one part of this contract becomes invalid or unenforceable, the remaining parts of it remain in place. Although the language is simple, the intentions are serious and this contract is a legal document under exclusive jurisdiction of the courts of the United Kingdom.
Authorising this project requires a signature returned and dated to Merci Visual.