1. Introduction 1.1. These terms and conditions set out the general terms under which we undertake business. The specific conditions relating to particular assignments will be covered in a separate letter of engagement.
1.2. All work carried out is subject to these terms except to the extent that changes are expressly agreed in writing.
1.3. Nothing in any proposal or correspondence is intended to create a legal partnership between us and you as defined by the Partnership Act 1890 or otherwise.
2.1. In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
“Business Day” a day (excluding Saturdays) on which banks generally are open for the transaction of normal banking business (other than solely for trading and settlement in pounds sterling);
“The Client” means any individual, firm or corporate body (which expression shall, where the context so admits, include its successors and assigns) that purchases services from the Supplier;
“The Commencement Date” the commencement date for this agreement as set out in the schedule;
“Services" means the services to be provided by the Supplier to the Clients as set out in the Letter of Engagement;
“The Supplier” Folk Commerce Limited
2.2. Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
2.3. The headings in these Conditions are for convenience only and shall not affect their interpretation.
3. Our Responsibilities to you
3.1. We will provide the services described in our engagement letter (or such variations as may subsequently be agreed in writing between us) with reasonable care and skill and in a timely manner.
3.2. The nature and content of any advice or service we provide will necessarily reflect the specific scope and limitations of our engagement, the amount and accuracy of information provided to us and the timetable within which the advice is required. If you ask us to provide our advice in an abbreviated format or timescale, you accept that you will not receive all the information you would have done had we provided a full written report or had been able to perform the work without an abbreviated timescale.
3.3. We will not normally seek to verify or check any information provided to us by you or by others on your behalf, and you acknowledge that we shall be entitled to rely on such information when performing our obligations under this agreement.
4. Your Responsibilities to us
4.1. In order to enable us to fulfil our responsibilities you agree, on request, to provide us with complete, accurate and timely information and to carry out any obligations ascribed to or undertaken by you or others under your control.
4.2. You agree that any commercial decisions that you make are not within the scope of our duty of care and in taking such decisions you must take into account the restrictions on the scope of our work and other factors, commercial and otherwise, of which you and your advisors are, or should be, aware from sources other than our work.
5.1. Unless otherwise agreed in writing, our fees will be based on the number and seniority of staff required, the degree of skill and responsibility involved, the resources required to complete the engagement and the fee rates for the appropriate personnel. Our fee rates will be reviewed from time to time. Any fee estimate we may provide is not an agreement to perform the services within a fixed time.
5.2. Any fee estimate agreed with you is necessarily based on the assumption that the information required for our work is made available in accordance with agreed timetables, and that your key executives and personnel are available during the course of our work. If delays or other unanticipated problems that are beyond our control occur this may result in additional fees for which invoices are raised.
5.3. All invoices will be charged including VAT.
5.4. We are entitled to submit invoices for services provided and disbursements incurred on an interim basis as the work progresses.
5.5. Our terms relating to payment of amounts invoiced are strictly 7 days net. We shall be entitled to charge monthly interest at a rate of 2% above the base rate for the time being of The Bank of England on all invoices that remain unpaid 28 days after presentation.
5.6. We reserve the right, where fees have been invoiced and payment is outstanding to us, to exercise a lien in respect of those outstanding fees over any documents belonging to you that may be in our possession.
5.7. We reserve the right to withdraw, retain or unpublish the work from the web that has been completed in the event that the invoice goes unpaid beyond 28 days.
6. Personal guarantee
6.1. We may require that a director and/or controlling shareholder, agrees to sign a personal guarantee in respect of our fees and expenses. If such a request is refused, we shall be entitled to halt any work in progress and to require immediate payment of any outstanding fees and expenses for our work to date.
6.2. You agree that by accepting these terms and conditions for this engagement, you are jointly and severally liable for any unpaid fees and expenses due to Folk Digital Limited and that you agree to be personally liable for payment of any unpaid fees and expenses on behalf of the company, partnership or limited liability partnership.
7. Internal disputes
7.1. In the event of a dispute between the parties who own or are in some way involved in the ownership and management of the business, it should be noted that our client is the business and we would not provide information or services to one party without the express knowledge and permission of all parties. We will continue to supply information to the normal place of business for the attention of the directors.
8. Variation and amendments
8.1. If the Client wishes to vary any details of the Letter of Engagement they must notify the Supplier in writing as soon as possible. The Supplier shall endeavour to make any required changes and any additional costs thereby incurred shall be invoiced to the Client.
8.2. If, due to circumstances beyond the Supplier’s control, they have to make any change in the arrangements relating to the provision of the Services they shall notify the Client forthwith. The Supplier shall endeavour to keep such changes to a minimum and shall seek to offer the Client arrangements as close to the original as is reasonably possible in the circumstances.
8.3. If the client increases the scope of work, misses any agreed payment stage or misses any milestone attributed to them in the site build timeframes then any agreed launch date will be deemed null and void in respect of any dispute.
9.1. The Supplier may terminate the agreement forthwith if:
The Client is in breach of any of its obligations hereunder; or
The Client has entered into liquidation (other than for the purposes of a bona fide amalgamation or reconstruction) whether compulsory or voluntarily or compounds with its creditors generally or has an administrator, administrative receiver or receiver appointed over all or a substantial part of its undertaking or assets; or
The Client has become bankrupt or shall be deemed unable to pay its debts by virtue of Section 123 of the Insolvency Act 1986; or
The Client ceases or threatens to cease to carry on business; or
Any circumstances whatsoever beyond the reasonable control of the Supplier (including but not limited to the termination of the service through no fault of the Supplier) arise that necessitate for whatever reason the termination of the provision of services.
In the event of termination under clause 9.1 the Supplier shall retain any sums already paid to it by the Client without prejudice to any other rights the Supplier may have whether at law or otherwise.
10.1. The Supplier may sub-contract the performance of any of its obligations under this Agreement without the prior written consent of the other party. Where either party sub-contracts the performance of any of its obligation under this Agreement to any person with the prior consent of the other party, that party shall be responsible for every act or omission of the sub-contractor as if it were an act or omission of the party itself.
11.1. We confirm that where you give us confidential information we shall at all times keep it confidential. Except as required by law to make disclosures, as provided for in regulatory, ethical, or other professional pronouncements applicable to our engagement.
11.2. You agree that it will be sufficient compliance with our duty of confidence for us to take such steps as we in good faith think fit to preserve confidential information both during and after termination of this engagement.
12. Intellectual property rights
12.1. We retain all copyright and other intellectual property rights in everything developed, designed or created by us either before or during the course of an engagement including systems, methodologies, software, know-how and working papers. We also retain all copyright and other intellectual property rights in all reports, written advice or other material provided by us to you, although the fees you pay us will allow you to use those materials for the purpose for which they were created under this engagement.
13. Health and safety
13.1. We acknowledge our statutory responsibilities to co-operate with your health and safety requirements, provided we are given notice of these. Whilst on your premises our staff shall be afforded by you the same protection for health and safety purposes as is due to your employees. If we are required by you to enter the premises of a third party you will use reasonable efforts to ensure that the third party also affords such protection to staff as is due to its employees.
14. Quality of service
14.1. We aim to provide a high quality of service at all times. If you would like to discuss with us how our service could be improved or if you are dissatisfied with the service that you are receiving please let us know by contacting a director by email or telephone.
14.2. If you have a complaint you should first discuss your complaint with a director.
14.3. All of our development includes XHTML or HTML markup and CSS templates, we will develop these using valid XHTML 1.0 Strict markup and CSS2.1 + 3 for styling. We will test all our markup and CSS in current versions of all major browsers including those made by Apple, Microsoft, Mozilla and Chrome. We will also test to ensure that pages will display visually in a similar, albeit not necessarily an identical way, specifically in Microsoft Internet Explorer 6 for Windows as this browser is now past it’s sell-by date. We will not test these templates in old or abandoned browsers, for example Microsoft Internet Explorer 5 or 5.5 for Windows or Mac, previous versions of Apple’s Safari, Mozilla Firefox or Opera unless otherwise specified. If you need to show the same or similar visual design to visitors using these older browsers, we will charge you at the hourly rate as set out above for any necessary additional code and its testing.
15.1. All risks connected with sending commercially sensitive information relating to your business are borne by you and are not our responsibility. If you do not accept this risk, you should notify us in writing that email is not an acceptable means of communication.
15.2. Email may be used to enable us to communicate with you. As with any other means of delivery this carries with it the risk of inadvertent misdirection or non-delivery. It is the responsibility of the recipient to carry out a virus check on any attachments received.
16. Our staff
16.1. You undertake that during the course of this engagement and for a period of six months following its conclusion you will not:
16.1.1. Solicit or entice away (or assist anyone else in soliciting or enticing away) any member of our professional staff with whom you have had dealings in connection with this engagement during the 12 months immediately prior to your approach; or
16.1.2. Employ any such person or engage them in a way to provide services to you.
16.2. This undertaking shall not apply in respect of any member of our staff who without having been previously approached directly or indirectly by you responds to an advertisement placed by you or on your behalf.
16.3. In the event of a breach of the terms of this undertaking that leads to the departure of an individual, you will pay us, on demand, a sum equivalent to 30% of the total annual remuneration package paid by us prior to his or her departure. You acknowledge that this provision is a fair and reasonable term intended to be a genuine assessment of the likely consequential loss to you.
17.1. Except in respect of death or personal injury caused by the Supplier’s negligence, the Supplier will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under express terms of this contract, be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the Supplier’s servants or agents or otherwise) in connection with the performance of this contract or with the use by the Client of the Services supplied.
17.2. The Client shall indemnify the Supplier against all damages, costs, claims and expenses suffered by the Supplier arising from loss or damage to any equipment (including that of third parties) caused by the Client, or its agent or employees.
17.3. The Supplier shall not be liable to the Client or be deemed to be in breach of these terms and conditions by reason of any delay in performing, or any failure to perform, any of the Supplier's obligations if the delay or failure was due to any cause beyond the Supplier's reasonable control.
17.4. We cannot guarantee that the functions contained in any web page templates or in a completed web site 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 web site and any other web pages, even if you have advised us of the possibilities of such damages.
17.5. All care and attention is taken to build any developments and web pages. However sometimes these break and bugs can occur when other changes are made to the site so all work cannot come with a warranty. Therefore it is agreed that only work that has been thoroughly tested and signed off by you will ever be put live.
18.1. Our liability to you in respect of breach of contract or breach of duty or fault or negligence or otherwise whatsoever arising out of or in connection with this engagement shall be limited to the total project value to cover claims of any sort whatsoever (excluding interest and costs) arising out of or in connection with this engagement. This provision shall have no application to any liability for death or personal injury not to any liability arising as a result of fraud on our part (or for which we are vicariously liable) nor to any liability that cannot lawfully be excluded or limited.
18.2. Where there is more than one party to this engagement letter (other than us), the limit of liability will have been allocated among us. It is agreed that, save where an allocation is expressly stated in our engagement letter, such allocation will be entirely a matter for you and you shall be under no obligation to inform us of the allocation. If (for whatever reason) no such allocation is agreed, you shall not dispute the validity, enforceability or operation of the limit of liability on the ground that no such allocation was agreed.
19. The time for bringing any claims
19.1. Any claims for breach of contract, breach of duty or fault or negligence or otherwise whatsoever arising out of or in connection with this engagement shall be brought against us within 2 years of the act or omission alleged to have caused the loss in question.
20. Applicable law
20.1. This engagement letter is governed by, and construed in accordance with English law. The Courts of England will have exclusive jurisdiction in relation to any claim, dispute or difference concerning this engagement letter and any matter arising from it. Each party irrevocably waives any right it may have to object to any action being brought in those courts, to claim that the action has been brought in an inappropriate forum, or to claim that those courts do not have jurisdiction.
20.2. All work performed is conducted using the current legislation according to the accounting period. We cannot be held responsible for future development and changes in the legislation.
20.3. Legislation that is retrospective in its application could impact on advice given to you by us prior to its introduction. We will not advise on the implications of such retrospective legislation unless you specifically ask us to do so.
21. Contracts (Rights of Third Parties) Act 1999
21.1. Persons who are not party to this agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this agreement. This clause does not affect any right or remedy of any person that exists or is available otherwise than pursuant to that Act.
22. Data Protection Act 1998
22.1. To enable us to discharge the services agreed under this engagement, and for other related purposes including updating and enhancing client records, analysis for management purposes and statutory returns, crime prevention and legal and regulatory compliance, we may obtain, use, process and disclose personal data about you. You have a right of access, under data protection legislation, to the personal data that we hold about you.
23. Force Majeure
23.1. Neither the Supplier nor the Client shall be liable to the other or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Services, if the delay or failure was due to any cause beyond that party’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond either party’s reasonable control:-
23.1.1. act of God, explosion, flood, tempest, fire or accident;
23.1.2. war or threat of war, sabotage, insurrection, civil disturbance or requisition;
23.1.3. acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
23.1.4. import or export regulations or embargoes;
23.1.5. strikes, lock-outs, or other industrial actions or trade disputes (whether involving employees of either the Supplier or the Client or of a third party);
23.1.6. difficulties in obtaining raw materials, labour, fuel, part or machinery; power failure or breakdown in machinery.
24.1. No waiver by the Supplier of any breach of these terms and conditions by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of any term, provision or condition of this agreement shall be effective only if given in writing and signed by the waiving party and then only in the instance and for the purpose for which the waiver is given.
24.2. No failure or delay on the part of any party in exercising any right, power or privilege under this agreement shall operate as a waiver of, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of or the exercise of any other right, power or privilege.
25.1. If any provision of these terms and conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these terms and conditions and the remainder of the provision in question shall not be affected thereby.
26.1. The Supplier reserves all copyright and any other rights (if any) which may subsist in the products of, or in connection with, the provision of the Supplier's services or facilities. The Supplier reserves the right to take such actions as may be appropriate to restrain or prevent infringement of such copyright.
27. Notices and Service
27.1. Any notice or other information required or authorised by this Agreement to be given by either party to the other shall be given by sending via pre-paid registered post, email, facsimile transmission or other comparable means of communication.
27.2. Any notice or information given by post in the manner provided by Clause 27.1 that is not returned to the sender as undelivered shall be deemed to have been given on the 14th day after the envelope containing it was so posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted, and that it has not been so returned to the sender, shall be sufficient evidence that the notice or information has been duly given.
27.3. Any notice or information sent by email, telex, cable, facsimile transmission or comparable means of communication shall be deemed to have been duly given on the date of transmission, provided that a confirming copy of it is sent to the other party 24 hours after transmission.
27.4. Service of any document for the purposes of any legal proceedings concerning or arising out of this Agreement shall be effected by either party by causing such document to be delivered to the other party at its registered or principal office, or to such other address as may be notified to one party by the other party in writing from time to time.