The following conditions shall apply to all contracts entered into by or on behalf of SellMyPub.com Limited (“SMP”)
1.1 In these terms
“CONDITIONS” means the standard conditions of the supply of services set out in this document and (unless the context otherwise requires) includes any special terms agreed in writing between SMP and the Client;
“CONTRACT” means the contract between SMP and the Client for the provision of services between the Parties;
“CONTRACT PRICE” means the price of the services to be supplied by SMP as agreed and detailed in Schedule 2;
“CONTRACT PROJECT” means the project upon which SMP has been retained by the Client, full details of which are provided in Schedule 1 attached to these terms and conditions. It will also include any additional project work agreed to be undertaken by SMP on behalf of the Client, subject to the appropriate documentation being signed by the Client and listed as the Addendum and subject to a price being agreed for such additional work.
“CLIENT” means the entity who accepts SMP’s written quotation for the provision of services and who thereafter provides instructions to SMP;
“SMP” means SellMyPub.com Limited, The Brewhouse, Sutton Farm, Holloway, Claverley, Bridgnorth, Shropshire WV5 7DD (a Company registered in England and Wales under number 06853494);
“WRITING” and any similar expression includes facsimile transmission and comparable means of communication including email.
“IPR” means any Intellectual Property Right created or licensed for the purpose of this Contract to include but not be limited to Trade Marks, copyright, database rights and other creatable IPR made during the course of this Contract.
1.2 A reference in these Terms to a provision of a statute shall be construed as a reference to that provision, as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Terms are for convenience only and shall not affect their interpretation.
2.1 Acceptance by SMP of the Client’s order is conditional upon acceptance by the Client of these conditions which shall in any event prevail over any terms and conditions of the Client.
2.2 The Client acknowledges that Schedule 1 comprehensively sets out all services that SMP is providing under this Contract. Additional services will be charged independently of the services set out in Schedule 1 and an Addendum (detailing the additional works) to this contract will be provided upon request. In any event, any further works undertaken and listed in the Addendum will be subject to these terms and conditions.
2.3 SMP will undertake the services detailed in Schedule 1 and the Client will provide the requisite instructions (and where appropriate, any necessary facilities) to SMP to enable SMP to undertake those services, subject in either case to these conditions.
3. TENDERS, QUOTATIONS, CONCLUSIONS OF CONTRACTS
3.1 All tenders /quotations issued by SMP shall be valid for a period of 14 days from the date thereof or such longer period as may be agreed between the parties in writing.
3.2 To enable the Contract Project to be carried efficiently, clear and concise instructions must be provided, when requested to SMP in order to enable it to complete the work within the time scales agreed between SMP and the Client. In circumstances where clear and concise instructions are not provided or significant or substantial changes are required to the works originally agreed, SMP reserves the right to increase the Contract Price.
4. CONTRACT TIME:
4.1 SMP will use all reasonable commercial endeavours to deliver its agreed obligations, SMP shall not be liable for any loss or damage whatsoever suffered by the Client as a result of any failure by SMP, for whatever reason, to deliver or to complete the Services within the time so specified. Unless specifically agreed in writing between SMP and the Client completion of the Services time shall not be of the essence of the Contract.
5. MATERIALS & OWNERSHIP:
5.1 All original works created by SMP for the benefit of the Client will remain the property of SMP until the full Contract has been paid to SMP.
5.2 The retention of any works developed by SMP in accordance with this Clause 5 shall be without prejudice to any or all of SMP’s other rights against the Client under this Contract.
6. PAYMENT / FEES / DISBURSEMENTS:
6.1 Upon entering into the Contract, the Client will pay to SMP all monies due under the contract on such basis as SMP requires. In circumstances where SMP requires a deposit or equivalent payment, notice will be provided by a Director or otherwise authorised manager and the client will be obliged to make immediate payment.
6.2. The Client agrees to indemnify outright in respect of any disbursements or charges that SMP may have to incur as a consequence of undertaking works on behalf of the Client.
6.3 VAT will be added at the current rate as appropriate.
7. INTELLECTUAL PROPERTY / CONFIDENTIALITY / DATA PROTECTION:
7.1 SMP confirms that upon payment in full being made all Intellectual Property Rights (“IPR”), which SMP has the ability to assign, that may vest within the Works will transfer to the Client at which point the Client will be free to exploit that IPR as it deems fit. SMP however reserves the right, from time to time, to retain the IPR created by such works. Notice will be provided in this regard.
7.2 The Client agrees that SMP is permitted to use any works developed by SMP (for the Client) for the purpose of advertising its services in whatever format SMP wishes to do so.
7.3 Unless SMP advises to the contrary, all Trade Marks, logos, copyright or other appropriate associated IPR will be original or the appropriate licenses have been obtained and the client will be free to use the said IPR without risk of penalty.
7.4 All information provided by the Client to SMP for the purpose of SMP undertaking and completing the Contract Project works will be treated as confidential information and treated this way for up to 1 year post completion of the contract.
7.5 Each Party will be bound by its obligations pursuant to the Data Protection Act 1998.
8. TERMINATION / EFFECTS OF TERMINATION:
8.1 Without prejudice to any other rights that SMP may have, this contract will be terminated, with immediate effect, in writing to the Client where: -
(a) Payment is not made to SMP;
(b) the Client commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified to do so;
(c) The Client goes into liquidation, becomes insolvent or has an administrator, receiver or other similar officer appointed in respect of all or part of its undertaking (or is the subject of a filing with any Court for the appointment of any such officer);
(d) Either SMP or the Client ceases or threatens to cease trading.
8.2 In circumstances where termination arises, the Parties agree to return to the other all documentation provided (to the other) in order to allow the Contract Project works to be undertaken and/or concluded. The Parties may agree to destroy such documentation and confirm the destruction to the other.
8.3 In circumstances where termination of this Agreement is necessary, the Client is provided to provide written notice as agreed in the contract, such notice to be sent by either 1st class post (to SMP’s registered office as detailed above) or by email to email@example.com. Service of such notice by any other means will not be deemed served.
8.4 In circumstances where SMP needs to provide a termination notice, it will do so in writing and will provide 3 months’ notice to the client, with the notice period commencing on the 1st day of the next calendar month following service being provided.
9. WARRANTIES / LIABILITIES:
9.1 SMP’s liability under this clause is limited to all services it originally provided to the Client (as detailed in Schedule 1). No liability will be accepted in circumstances where the client has rectified / amended/deleted/changed or otherwise any of those works (or sought to rectify/amend/delete/change or otherwise) without first providing SMP with the opportunity to attend to those works.
9.2 In any event, SMP’s maximum liability to the Client in respect of any losses / damages / claims or costs shall not exceed the Contract Price.
9.3 To the extent that the Client requires SMP to utilise a third party to undertake any part of the Contract Project Works, SMP shall not be liable to the Client in respect of those works and any act, error or omission caused by the third party will give rise to a separate action between the Client and the third party. In circumstances where third parties have caused the Client loss and/or damage, SMP will assist the Client in respect of any claims against the said third party subject to the Client being responsible for all reasonable costs incurred in SMP offering such assistance.
10.1 This contract shall be governed by the laws of England and Wales.
10.2 The Parties agree to submit to the exclusive jurisdiction of the Courts of England and Wales.
11.1 Interest will be charged on any unpaid presented invoice pursuant to the Late Payments of Commercial Debts (Interest) Act 1998 at a rate of 8% above the base rate of the Bank of England.
11.2. For the avoidance of doubt, failure by the Client to provide clear instructions when requested will amount to a cancellation of the Contract.
11.3 If any provision of the Contract is held by a Court or other competent authority to be invalid / unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
11.4 No term of this Contract is intended for the benefit of any Third Party and the Parties do not intend that any term should be enforceable by a third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
11.5 SMP may use email to communicate with the Client. In doing so, SMP accepts no risk/liability of inadvertent misdirection or non-delivery of emails. The Client is obliged to carry out a virus check on emails and any attachments.
11.6 Internet communications are capable of data corruption. SMP accepts no responsibility for changes made to those communications after dispatch, errors / problems that may arise through the use of internet communications and all risks connected with sending commercially sensitive information relating to the Client vests with the Client.
11.7 All correspondence between the Parties is to be in writing and may be sent via email unless otherwise indicated.
11.8 In circumstances where the contract is terminated without justification, SMP reserves the right to recover damages pursuant to its common law entitlement.
12.1 Where the Client is a consumer (as opposed to a business) and in circumstances where an Order has been placed with SMP electronically, pursuant to the Consumer Protection (Distance Selling) Regulations 2000 a period of not less than 7 days will be provided to enable the client to terminate the contract before any work is undertaken. If no notice of termination is provided during this time, a binding contract will be deemed as formed. In addition to this, from time to time SMP may attend a client’s premises, in circumstances where this occurs, a period of not less than 7 days will be provided pursuant to the Cancellations of Consumer contract made in a consumer’s home or place of work etc. Regulations 2008.