Terms & Conditions
1 Definitions
In these Terms and Conditions, the Specification and the Contract the following words shall have the meanings given in this clause:
1.1 ‘Client’
Means the person, firm or company who instruct Alchemy Marketing to perform the Services
1.2 ‘Contract’
Means the agreement between Alchemy Marketing and the Client to perform the Services comprising of these Terms and Conditions and the Specification. The Contract and the Client’s acceptance of these terms exists from when:
(a) The Client signs the Contract; or
(b) Alchemy Marketing commences work on the Goods or Services on the Client’s instruction
1.3 ‘Deposit’
Means 25% of the Price due on the Client’s agreement to the Contract or another percentage as detailed in the initial Specification.
1.4 ‘Due Date’
Means 28 days from the date of Alchemy Marketing issuing the invoice upon completion of the Goods and Services.
1.5 ‘Alchemy Marketing’
Means Nick Moreton of Studio One, 38 Sunnybank Road, Sutton Coldfield, West Midlands B73 5RE, trading as Alchemy Marketing.
1.6 ‘Interest Rate’
Means 5% above the base rate of the Bank of England.
1.7 ‘Goods and Services’
Means the goods Alchemy Marketing will deliver and / or services Alchemy Marketing will supply according to the Specification.
1.8 ‘Price’
Means the price agreed by Alchemy Marketing and the Client for providing the Goods and Services either:
(a) initially on agreement of the Specification; or
(b) a new price later agreed on alteration of the specification
1.9 ‘Specification’
Means:
(a) the details of the work agreed between the parties and signed by the Client; and
(b) any later alteration agreed by the parties throughout the duration of the Contract
1.10 ‘Terms and Conditions’
Means these Standard Terms and Conditions of Alchemy Marketing which can be found at http://www.alchemymc.com
2 Interpretation
These Terms and Conditions, the Specification and the Contract shall be read in the light of the following interpretation:
2.1 Gender
One gender shall mean all genders.
2.2 Headings
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
2.3 Statute
Any reference to a statute also refers to any amendment or re-enactment thereof.
3 Alchemy Marketing's OBLIGATIONS
3.1 Obligation
Alchemy Marketing shall on receipt of full instructions and the Deposit from the Client using reasonable care and skill complete and / or deliver the Goods and Services to the Client in accordance with the Specification.
3.2 Timescale
The goods and services shall be completed and / or delivered in a reasonable time unless expressly stated in the Specification.
4 Client's Obligations
The Client shall:
4.1 Payment of the Deposit
Pay the Deposit to Alchemy Marketing on instructing Alchemy Marketing to undertake the work on the Goods and Services.
4.2 Payment of the Price
Pay the Price less the Deposit if already paid to Alchemy Marketing by the Due Date.
4.3 Late Payment
Pay interest calculated daily at the Interest Rate to Alchemy Marketing for every day beyond the Due Date the Price is not received without set off. Alchemy Marketing reserves its rights under the Late Payment of Commercial Debts (Interest) Act 1998 in relation to late payment.
4.4 Provide Information
Provide the necessary information to enable Digital Starfish Ltd to undertake the works detailed in the Specification.
5 Intellectual Property Rights
Alchemy Marketing assigns all intellectual property rights in the Goods and Services to the Client on receipt of payment of the Price and all monies owing to Alchemy Marketing by the Client. Except Alchemy Marketing retains the right:
5.1 to use the Goods and Services for the purposes of advertising or otherwise promoting Alchemy Marketings work
5.2 to be identified as the author of copyrightable works under sections 77 – 79 of the Copyright, Designs and Patents Act 1988.
6 Declarations
6.1 Approvals
Where preliminary material is sent to the Client for final approval, the Client shall check it carefully and notify Alchemy Marketing by e-mail or post of any errors or alterations. Alchemy Marketing will use its reasonable endeavours to effect any changes so notified but Alchemy Marketing reserves the right to charge extra if any of these alterations either go beyond the original Specification or are notified to Alchemy Marketing more than 5 working days after their supply to the Client. Where notification of errors is either delayed in this way or does not occur at all before publication, Alchemy Marketing will not be liable in respect of any such errors. Alchemy Marketing cannot guarantee that any or all colours will be exactly replicated in the final version as published.
6.2 Assignment
(a) The Client shall not assign the Contract.
(b) Alchemy Marketing may assign or subcontract the Contract or any part of it to any person, firm or company.
(c) A person who is not a party to this Contract has no rights under the Contracts (Rights of Third Parties) Act of 1999 to enforce any term of this Contract.
6.3 Confidentiality
Notwithstanding the termination of the Contract, Alchemy Marketing and the Client agree to keep confidential and not use for its own purposes or disclose to a third party and information of a confidential nature which may become known unless such information is already public knowledge.
6.4 Delivery
Where relevant delivery of the Goods and Services shall be by email or posting on the internet unless otherwise expressly stated in the Specification or agreed between the parties.
6.5 Domain Names
Alchemy Marketing may purchase internet domain names for the client. Payment and renewal of domain names is the responsibility of the Client. Alchemy Marketing excludes all liability for the loss or cancellation of domain names.
6.6 Entire Agreement
The Client accepts that the Contract represents the entire understanding between the parties and in that regard supersedes all representations, communications and prior agreements between the parties.
6.7 Alchemy Marketing Link
Alchemy Marketing reserves the right to place a graphical and/or textual link to the Alchemy Marketing website on any website designed for the Client unless expressly stated in the Specifications. The link must be retained for a 12 month period from the date the website goes live.
6.8 Alchemy Marketing’s Status
Alchemy Marketing acts in the Contract as a principal and not as agent for the Client and will enter into all related contracts as principal.
6.9 Governing Law
The Contract and any relevant interaction between the parties shall be governed by and construed in accordance with the laws of England and Wales and both parties agree to submit to the non-exclusive jurisdiction of the courts of England and Wales in relation to any claim, dispute or difference which may arise hereunder or in relation to any relevant interaction between the parties prior to this Contract.
6.10 Notice of change in Terms and Conditions
Alchemy Marketing reserves the right to change these Terms and Conditions without prior notice. The Client shall deemed to have received notice of change to the Terms and Conditions where they have been posted to http://www.alchemymc.com.
6.11 Service of Notices
Any written notice required by the Contract should be sent to the Parties’ address as communicated on the commencement of the Contract. Notices must be sent by recorded delivery.
7. Termination
7.1 Method of Termination
(a) Either party may determine this agreement on breach of the Contract or by 28 days
notice. Termination must be by notice.
(b) This agreement will determine if either party
(i) (being a company) passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect; or
(ii) (being a partnership or other unincorporated association) is dissolved or (being a natural person) dies; or
(iii) becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or
(iv) has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or
(v) ceases, or threatens to cease, to carry on its business.
7.2 On Termination
Alchemy Marketing shall be entitled to keep the Deposit and payment on a quantum meruit basis for work done and time spent on the Goods and Services.
8. Exclusion of Liability
8.1 Liability
Alchemy Marketing accepts liability for its own negligence or faults in the Goods and Services, but only to the extent stated in this clause. Any claim brought by the Client must be brought within 2 months of delivery and / or completion of the Goods and Services.
Alchemy Marketing does not exclude or restrict its liability for death or personal injury resulting from negligence.
Alchemy Marketing’s liability to the Client in contract law or in tort or otherwise howsoever arising in relation to this Contract is limited to Alchemy Marketing’s charges for the Goods and Services.
Alchemy Marketing will not be liable to the Client for any loss or destruction of software or systems, temporary or otherwise, which occurs following use of the Goods and Services except and to the extent that it is caused by the wilful default of one of Alchemy Marketing’s employees.
Alchemy Marketing shall not be liable in any way in respect of any failure, delay or defect in the supply or use of the Goods and Services caused by the supply or specification by the Client of unsuitable material or content or by the reproduction of the Goods and Services by a third party.
Where such event could not reasonably have been prevented or controlled by Alchemy Marketing, Alchemy Marketing is not liable to the Client if any hardware or software used in conjunction with the Goods and Services malfunctions, fails or is otherwise unable to communicate with other systems or Internet users (including where computer viruses have caused such failures) such that the use of the Goods and Services is hindered or impeded.
In any event Alchemy Marketing is not liable to the Client for the following loss or damage, howsoever caused and even if foreseeable by Alchemy Marketing:
(a) economic loss including loss of profits, business, contracts, revenues, goodwill, production and anticipated savings of any description;
(b) loss arising from any claim made against the Client by any other person; or
(c) loss or damage arising from the Client’s failure to fulfil its responsibilities or any matter under the control of the Client.
8.2 Force Majeure
Alchemy Marketing is not liable for any breach of this Contract caused by matters beyond its reasonable control including acts of God, fire, lightning, explosion, terrorism, war, disorder, flood, industrial disputes (whether or not involving Alchemy Marketing’s employees), weather of exceptional severity or acts of local or central government or other authorities.
8.3 Production
Unless otherwise agreed in writing Alchemy Marketing will arrange and oversee all production and post-production related to the Goods and Services. Should it be agreed that the Client arranges any production work itself, then in that regard Alchemy Marketing shall not be responsible for the booking, supervision or quality control of any relevant facilities, nor will it be responsible for payment of any related charges.
8.4 Compliance with Local Laws
It shall be the sole responsibility of the Client to ensure that the Goods and Services comply with all local laws (whether consumer, public or civil), regulations and codes in all countries in which use is intended. It shall also be the Client’s responsibility to ensure that the Goods and Services carry all disclaimers, warnings and public information which any competent lawyer of the Client in any of the relevant jurisdictions would advise.
Accordingly the Client agrees to indemnify and hold harmless Alchemy Marketing and Alchemy Marketing’s agents and employees from any liability, cost, loss, damages award, sum payable by way of settlement or other expense of any kind (including reasonable legal fees) arising from any claim, demand or action alleging that the Goods and Services or use of them are contrary to any law, code or regulation in any country.
1st January 2012
