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COAL FACE DEVELOPMENT LTD (“COALFACE”)
GENERAL TERMS & CONDITIONS
CoalFace believes that the relationship between our clients and ourselves should be based on mutual confidence and trust. However, in order to avoid any misunderstanding, we have set out the terms by which we, The Agency, provide our services to you, The Client.
“The Agency” means Coal Face Development Limited; a company registered in England and Wales with company number 6430005 whose registered office is at 68 Jesmond Road West, Newcastle upon Tyne, NE2 4PQ.
“The Client” shall mean any individual, firm, company or other party with whom The Agency contracts or seeks to contract.
“Services” means services to be provided by The Agency to The Client, as agreed by both parties verbally, via email exchange or other similar method or defined in the Client Brief but always subject to these Terms and Conditions.
“Material” means all website or software development, hosting, artwork, copy, models, designs, photographs and all other material created by the Agency for the The Client in connection with our engagement by directors or employees of The Agency.
The Client appoints The Agency to carry out and provide the Services for The Client in accordance with these Terms and Conditions. These Terms and Conditions represent the sole Contract between The Agency and The Client for Services to be provided.
1. Client Brief
1.1 The Client agrees to give a full and clear brief to The Agency and ensure all facts regarding the project requirements, deliverables, objectives, products and/or services are accurate and clear.
2. Prices & Quotes
2.1 CoalFace’s prices are defined as a day or half day rate unless otherwise agreed between The Client and The Agency.
2.2 All quotes/estimates are valid for 30 days from the date of submission and are exclusive of VAT unless otherwise stated.
2.3 Quotes/estimates are based on the information provided by The Client, including, but not limited to, detail on quantities, structure, scope and functionality. Any quote/estimate may therefore be subject to change should the client’s requirements change at any time during the project.
2.4 The Agency reserves the right to alter the daily rate at any time as business needs dictate. But we will inform The Client of any alterations prior/as and when.
2.5 Quotes/estimates are based on The Agency’s current costs and, unless otherwise agreed, are subject to amendment on or at any time after acceptance to meet any rise or fall in such costs.
2.6 Any estimates given by The Agency as to the time of completion or performance of its services shall be estimates only.
2.7 A signed purchase order with a PO number or email confirming project value will need to be raised or supplied by The Client to The Agency for the full quoted and agreed amount before work can commence on any job.
2.8 All reasonable expenses for travel, accommodation and direct Client entertainment are re-charged to The Client at net unless otherwise agreed between The Client and The Agency.
3.1 The Client will provide email approval to proceed on all project stages as defined and required by The Agency.
3.2 Any stated timescale is reliant upon The Client providing all required information/copy/images within the time set out at project initiation.
3.3 The Agency reserves the right to sub-contract the fulfilment of an order or any part thereof.
3.4 When required to expedite project delivery ahead of the time needed for proper production of a given deadline, the Agency shall not be liable for defects occasioned thereby. Should such delivery require payment of overtime wages, delivery charges or other additional costs, all such extras will be for The Client’s account.
3.5 The Client’s property and property supplied to The Agency on behalf of The Client, while it is in the possession of The Agency or in transit to or from The Client, will be deemed to be at The Client’s risk unless otherwise agreed and The Client should insure accordingly.
3.6 The Agency shall not be required to use, print, upload or hold any matter which in its opinion is or may be of an illegal or libellous nature or an infringement of the proprietary or other rights of a third party.
4. Intellectual Property (IP) and Other Rights
Intellectual Property (IP) rights refer to a collection of rights that includes copyright among other rights such as patents and trademarks.
4.1 Upon The Client fulfilling all its obligations under a defined agreement or contract including those relating to payment and the period of notice, The Agency may look to grant The Client an IP licence from the end of the agreement or contract for the use of The Agency Material.
4.2 If no agreement of an IP license is in place between The Agency and The Client, IP rights are owned by The Agency. The use of Material by The Client will be at the discretion of The Agency and must be agreed between The Agency and The Client before use in any Territories.
4.3 Unless instructed otherwise in writing The Agency will assume all Client-supplied materials are free of intellectual property and copyright provisions or any restrictions regarding confidentiality of information.
4.4 The Agency retain the IP in any material contained in any presentation made in competition with any other agency in the event of The Agency’s presentation being unsuccessful.
4.5 The Agency retains the right to mention or feature any work commissioned or undertaken on behalf of The Client on its websites, brochures or any publicity.
5.1 All Material prepared by The Agency and paid for by The Client will be The Client’s property but the Client will not necessarily own the copyright(s) or other Rights in it. For the avoidance of doubt, The Client shall not own the copyright in ‘stock’ photographs obtained from news or photographic agencies for particular advertisements or photography or to any other medium in which this material may be supplied.
7. Invoices & Payment
7.1 Payment must be made no more than 30 days after date of invoice unless otherwise agreed in writing in advance. We understand and will exercise our statutory right to charge interest under the Late Payment Of Commercial Debts (Interest) Act 1998 amended by European Directive 2000/35/EC if we are not paid according to these terms.
7.2 All invoices are subject to UK VAT at the current rate, unless a valid exemption certificate is provided.
7.3 All payments must be in UK Pounds Sterling.
7.4 Except where previously agreed in writing, all work completed after project inception will be billed as it is completed at the end of every calendar month as Work in Progress (WIP) until the conclusion of the project.
7.5 If The Agency incurs any costs as a result of The Client’s neglect or default, The Agency may charge those costs to the Client in addition to the contract price.
7.6 When payment is overdue, The Agency may suspend work, service and/or delivery without notice and without prejudice to any other legal remedy until due payment has been made. Furthermore, any work started but incomplete may be suspended and payment therefore becomes immediately due and payable, notwithstanding anything expressed herein, and any monies in respect of.
7.7 The Agency may require payment in advance, or a deposit of at least 50% of the quote/estimate total prior to instigating work on an order, particularly but not limited to the following situations: new clients; clients with a poor payment history; large, lengthy or complex projects. Where a deposit is required, the balance shall be due upon completion of the work, unless otherwise agreed in writing in advance.
8. Warranties & Indemnities
8.1 The Agency warrants that its personnel working on the Services are and shall be competent and suitable, whether as to qualifications, experience or otherwise, to perform the Services.
8.2 If there is an error in Advertising as published or publication is delayed or does not occur as planned, the Agency will not be liable unless this is caused by its default or neglect.
8.3 Should the Agency or its employees sustain any loss or liability, costs (including legal costs) or damages as a result of the Client’s breach of this Agreement, the Client shall indemnify the other subject to the provisions of Clause 9.
8.4 The Client warrants that to the best of its knowledge, information and belief all Account information supplied to The Agency before and during the Term will be accurate and not in any way contrary to any law applicable in any part of the Territory.
8.5 The Client agrees to indemnify and keep The Agency indemnified against any or all costs, demands, expenses, losses or damages incurred by the Agency arising from or out of any cancellation, delay, alteration or disruption to the production of the Advertising which results from any act or threatened act of terrorism or military action.
8.6 The Client accepts full legal responsibility in respect of any Advertising approved by it for publication and will indemnify the Agency in respect of any loss or liability, costs (including legal costs) or damages incurred as a result of any use of the Advertising by The Client for advertising purposes.
8.7 The Agency will take all reasonable precautions to safeguard the Client’s property entrusted to our care, but the Agency will not be responsible in any manner howsoever, for its loss, damage, destruction or unauthorised use except where the same is the direct result of our negligence or wilful default.
8.8 Any claims against The Agency arising as a result of damage, delay or loss of goods in transit must be submitted in writing to The Agency and the carrier so as to reach The Agency and the carrier within three working days of delivery and claims for non-delivery within twenty-eight days of despatch of the goods. All other claims must be made within ten days of delivery.
9. Limitation of Liability
9.1 Nothing in this Agreement shall exclude or in any way limit The Agency’s liability for fraud, or for death or personal injury caused by its negligence, or any other liability to the extent such liability may not be excluded or limited as a matter of law. Subject to this but including any liability arising under any indemnity under this Agreement:
9.1.1 The Agency’s maximum aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, will in no circumstances exceed the total remuneration payable to the Agency hereunder during the preceding 12 months; and
9.1.2 The Agency will not be liable under this Agreement for any loss of actual or anticipated income or profits, loss of contracts or for any special, indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
9.2 This Agreement states the full extent of The Agency’s obligations and liabilities in respect of the Advertising and the performance of the Services. The parties agree that any condition, warranty representation or other term concerning the Advertising and/or the performance of the Services which might otherwise be implied into or incorporated in this Agreement, whether by statute, common law or otherwise, is excluded to the maximum extent permitted by law.
9.3 The Client agrees that if delivery of any Service or Materials is postponed or cancelled as a result of any act or threatened act of terrorism or military action, the Client shall have no claim of any kind over all or any part of any agreed production budget. The Agency shall use its reasonable endeavours to recoup as much of any such production budget from third parties as is possible in the circumstances and account to The Client for any sums the Agency is able to recover less The Agency’s own costs and expenses.
10. Confidential Information
10.1 The Agency acknowledges a duty not to disclose without The Client’s permission during or after the term of appointment any confidential information resulting from studies or surveys commissioned and paid for by The Client. The Client, in turn acknowledges The Agency’s right to use as The Agency sees fit any general marketing or advertising intelligence in the field of The Client’s product or service, which we have gained in the course of our appointment.
11. Data Protection
11.1 The parties envisage that the Data Protection Act 1998 and/or the General Data Protection Regulation (as applicable) (Act) will only apply to this Agreement insofar as CoalFace is hosting a website that is automatically processing personal data on behalf of the Client.
11.2 The parties acknowledge and agree that the Agency will be the “data processor”, and the Client the “data controller” as defined under the Act.
11.3 Where appropriate, the Client authorises the Agency and its subcontractors to (through automated functionality) host the its website and associated database and import personal data from the Client’s external sources (either through automated functionality or manual input) into the website. The Client further permits the processing of that data in line with the Documentation and the functionality of the website.
11.4 Where the Act does apply:
11.4.1 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage;
11.4.2 each party warrants to the other that it will comply with its obligations under the Act; and
11.4.3 the Client warrants that it has all necessary consents and authority under the Act to allow it to transfer personal data to the Agency for the purposes of this Agreement.
11.5 Where the Client asks the Agency to process personal data (as defined under the Act) we will be classified as a data processor (as defined under the Act) and will:
11.5.1 only act on the written instructions of the controller (unless required by law to act without such instructions);
11.5.2 ensure that people processing the data are subject to a duty of confidence;
11.5.3 take appropriate measures to ensure the security of processing;
only engage a sub-processor with the prior consent of the data controller and with a written contract in place;
11.5.4 assist the data controller in providing subject access and allowing data subjects to exercise their rights under the GDPR;
11.5.5 assist the data controller in meeting its GDPR obligations in relation to the security of processing, the notification of personal data breaches and data protection impact assessments;
11.5.6 delete or return all personal data to the controller as requested at the end of the contract; and
11.5.7 submit to audits and inspections, provide the controller with whatever information it needs to ensure that they are both meeting their Article 28 obligations, and tell the controller immediately if it is asked to do something infringing the GDPR or other data protection law of the EU or a member state.
Nothing within this Agreement relieves the Agency of its own direct responsibilities and liabilities under the Act.
12. Force Majeure
12.1 The Agency shall be under no liability if it shall be unable to carry out any provision of the contract for any reason beyond its control including (without limiting the foregoing) Act of God, legislation, war, fire, flood, drought, failure of power supply, lock-out, strike or other action taken by employees in contemplation or furtherance of a dispute or owing to any inability to procure materials required for the performance of the contract. During the continuance of such a contingency The Client may by written notice to The Agency elect ‘to terminate the contract and pay for work done and materials used’, but subject thereto shall otherwise accept delivery when available.
13. Law & Jurisdiction
13.1 All contracts between The Client and The Agency are to be governed by and construed in accordance with English Law and any litigation for enforcement or redress shall be brought in the Courts of England.
14.1 CoalFace reserves the right to change or modify these terms at any stage with immediate effect.