Terms and Conditions
The following terms and conditions apply to all website development / design services provided by Brainiac Media Limited to the Client.
It is not necessary for any Client to have signed an acceptance of these terms and conditions for them to apply. If a Client accepts a quote, then the Client will be deemed to have satisfied themselves as to the terms applying and have accepted these terms and conditions in full.
Please read these terms and conditions carefully. Any purchase or use of our services implies that you have read and accepted our terms and conditions.
The following definitions and rules of interpretation apply in these Conditions.
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 in accordance with clause 5 (Charges and payment).
Commencement Date: has the meaning given in clause 2.2.
Completion Date: the estimated date specified in the project outline by which the Supplier is to provide the Customised Software or work after full and final payment of any outstanding invoice.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.
Contract: the contract between the Supplier and the Client for the supply of Services in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Client: the person or firm who purchases Services from the Supplier.
Client Default: has the meaning set out in clause 4.2.
Customised Design: for the purposes of this Contract means the customised design or graphic design, brand design or logo or conceptulisation, developed by the Supplier specifically for the Client under this Contract.
Customised Software: for the purposes of this Contract means the customised design and development of a website or plugin or any other custom coded software, developed by the Supplier specifically for the Client under this Contract.
Data Protection Legislation: up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter (i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
GDPR: General Data Protection Regulation ((EU) 2016/679).
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Project Quotation: the Supplier’s quote for Services pre-defined in the Client Brief and agreed in writing or verbally by the Client, the Supplier reserves the right to alter or decline to provide a quotation after the expiry of 30 days.
Services: the services, supplied by the Supplier to the Client as set out in the Specification or proposal.
Specification: the description, proposal or Project Quotation that sets out the specification of the Services provided in writing by the Supplier to the Client including the Charges that have been pre-discussed via telephone or email with the Client.
Supplier: Brainiac Media Limited registered in England and Wales with company number 08236951
Supplier Software: the software programs proprietary to the Supplier, which are to be provided to the Client without modification or customisation.
(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 all subordinate legislation made under that statute or statutory provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes post and email.
2. Basis of contract
2.1 The acceptance of the Services and the Charges set out in the Specification or Project Quotation by the Client constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The Terms of this Contract shall come into existence on (Commencement Date), this shall be the date that the Client accepts the Specification or Project Quotation provided
by the Supplier (the Supplier reserves the right to alter or decline to provide a quotation after the expiry of 30 days).
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by the Supplier is only valid for a period of 30 Business Days from its date of issue, the Supplier reserves the right to alter or decline to provide a quotation after the expiry of 30 days.
2.6 The following terms and conditions apply to all services provided by the Supplier to the Client.
3. Supply of Services
3.1 The Supplier shall supply the Services to the Client in accordance with the Specification in all material respects.
3.2 The Supplier reserves the right to amend the Specification if necessary, to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Client in any such event.
3.3 The Supplier warrants to the Client that the Services will be provided using reasonable care and skill.
4. Client's obligations
4.1 The Client shall:
(a) ensure that any information that it provides in its client specification or briefs are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services; and to delegate a single individual as a primary contact to aid the Supplier with progressing commission of services in a satisfactory and expedient manner.
(c) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects, such materials to include but not limited to website content; text, images, videos and sound files;
(d) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(e) comply with any additional obligations as set out in the Specification;
4.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays the Supplier's performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Client shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Client Default.
5. Charges and payment
5.1 The Charges for the Services have been calculated on a time and materials basis and are defined in the Specification, along with the payment arrangement, titled the description of work, and have been quoted at a fixed rate.
5.2 The work defined in the description of work, set out in the Specification requires:
(a) An advance payment of a minimum of thirty five (35) percent of the Project Quotation total before the work is commenced,
(b) A second payment of thirty five (35) percent is required on completion of the first phase,
(c) with the remaining thirty (30) percent of the Project Quotation total due upon completion of the work, prior to upload to the server or release of materials.
5.3 Any subsequent changes to the project scope or material alterations will need to be approved by both parties and if approved and agreed will be quoted for and if agreed the alteration shall be made to the Specification and will be added to the overall cost for the project.
5.4 Any work or services other than the work agreed in the description of works as set out in the Specification (see Project Quotation), (such as digital marketing, SEO campaigns, further graphic design work, social media campaigns and so forth) shall be first agreed by the parties and quoted for separately and dealt with under separate terms.
5.5 The Supplier shall invoice the Client for the services at each phase as set out in clause 5.2 and the Project Quotation, the invoice shall be sent to the Client via email.
5.6 The Client shall pay each invoice submitted by the Supplier:
(a) Within 28 days of the date of invoice and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and provided at the bottom of the invoice sent by the Supplier; and
(c) time for payment shall be of the essence of the Contract.
5.7 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Client, the Client shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.1 The parties agree that, this Contract does not transfer ownership of, or create any licences (implied or otherwise), in any Intellectual Property Rights in the Supplier Software.
6.2 The Intellectual Property Rights in the Customised Software or Customised Design shall, at the Completion Date, vest in the Client, for avoidance of doubt this is when the Client pays the final invoice in full after which the Supplier assigns where appropriate all such Intellectual Property Rights with full title guarantee to the Client.
6.3 The Client grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to the Supplier for the term of the Contract for the purpose of providing the Services to the Client.
7. Data protection and data processing
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 6 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
7.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
7.3 Without prejudice to the generality of clause 7.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Supplier for the duration and purposes of the Contract.
7.4 Without prejudice to the generality of clause 7.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
(a) process that Personal Data only on the written instructions of the Client unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (Applicable Data Processing Laws). Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Client of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit the Supplier from so notifying the Client;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
(i) the Client or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) the Supplier complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
(e) assist the Client, at the Client's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators.
8. Limitation of liability
8.1 The Supplier shall obtain insurance cover in respect of its own legal liability; the Client is responsible for making its own arrangement for the insurance of any excess loss.
8.2 The total liability arising in connection with the performance or contemplated performance of the Contract shall be limited to the initial total amount paid for the Services or Domain Name registration or £250 whichever is the greater under this Contract during the twelve (12) month period. The Supplier shall have no liability for any failure or delay due to matters beyond their reasonable control.
8.3 The Supplier shall not be liable for any:
(a) pure economic loss
(b) loss of profit
(c) loss of business
(d) loss of anticipated savings
The foregoing shall not apply to the extent prohibited by applicable law.
9.1 Without affecting clause 4.2, 9.2, 9.3 and 9.4 and any other right or remedy available to it, the Supplier shall not terminate the Contract, the Client shall have the right to terminate for convenience at any time upon written notice and in this event the Client shall pay the relevant fees (pro rata) to the date of termination.
9.2 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving written notice to the other party if:
(a) 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;
(b) 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
(c) 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 the Contract has been placed in jeopardy.
9.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Contract on the due date for payment;
9.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Client and the Supplier if the Client fails to pay any amount due under the Contract on the due date for payment, the Client becomes subject to any of the events listed in clause 9.2(a) to clause 9.2(c), or the Supplier reasonably believes that the Client is about to become subject to any of them.
10. Consequences of termination
10.1 On termination of the Contract:
(a) the Client shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest (if applicable) and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Client immediately on receipt;
10.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
11.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control and if such circumstances persist for more than 60 days, the Contract shall be deemed terminated unless otherwise agreed in writing between the parties.
11.2 Assignment and other dealings.
(a) The Supplier shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights
and obligations under the Contract without the prior written consent of the Client which shall not be unreasonably withheld or delayed.
(b) The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
(a) Each party undertakes that it shall not disclose to any person any confidential information concerning the business, affairs, Clients, clients or suppliers of the other party, except as permitted by clause 11.3(c).
(b) Confidentiality obligations shall also apply to information exchanged between the parties prior to the Commencement Date of the Contract.
(c) Each party may disclose the other party's confidential information:
(i) 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 the 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 11.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(d) Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
11.4 Entire agreement.
(a) The 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 acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in the Contract.
11.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract
or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
11.7 Severance. If any provision or part-provision of the 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 the Contract.
11.8 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
11.9 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
11.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.