STANDARD BUSINESS TERMS
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 12.7.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases the Services from the Supplier.
Deliverables: the deliverables set out in the Order.
Force Majeure Event: has the meaning given to it in clause 11.1.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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.
Order: the Customer’s written acceptance of the Supplier’s quotation.
Proof: A trial or agreed impression, draft, description, design, and/or drawing made on the basis of a Specification by or together with the Supplier for the approval of the Customer.
Schedule of Payment: A schedule prepared by the Supplier of payments to be made by the Customer. The schedule is calculated on the basis of the price set out in the Order divided over the number of stages in the project. The schedule will be prepared pursuant to clause 9.6.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Specification.
Specification: any specification for the Services, including any relevant plans or drawings that are agreed in writing by the Customer and the Supplier.
Supplier: J3D Design & Imaging Ltd registered in England and Wales with company number 04349673.
Supplier Materials: has the meaning set out in clause 4.1(f)
1.2 Construction. In these Conditions the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes faxes and emails.
2.0 Basis of Contract
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions or illustrations or descriptions 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.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 Days from its date of issue.
3.0 Supply of Services
3.1 The Supplier shall provide the Services to the Customer in accordance with the Specification in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
3.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.4 If the Supplier is required to provide Services or Deliverables which involve working with, adding to, changing, or installing, goods or installations the goods or installations provided by the Customer must be in good working order or in good condition. The Supplier will not be liable or responsible for damage to such installations caused during the performance of the Services.
3.5 The Supplier warrants to the Customer that the:
(a) Services will be provided using reasonable care and skill; and
(b) the Deliverables will be fit for the intended purpose notified to the Supplier.
4.0 Customer’s Obligations
4.1 The Customer shall:
(a) ensure that the terms of the Order and (if submitted by the Customer) the Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
(e) obtain and maintain all necessary licenses, permissions and consents which may be required for the Services before the date on which the Services are to Start; and
(f) keep and maintain all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation.
4.2 If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default; and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer 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 Customer 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 Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5.0 Charges and Payment
5.1 The Charges for the Services shall be on a time and materials basis:
(a) the charges shall be calculated in accordance with the Supplier’s standard daily fee rates as set out in fee schedule;
(b) the Supplier’s standard daily fee rates for each individual are calculated on the basis of an eight hour day from 9.00am to 5.00pm worked on Business Days;
(c) the Supplier shall be entitled to charge an overtime rate of fifty per cent of the standard daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 5.1(b);
(d) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
5.2 The Supplier reserves the right to increase its standard daily fee rates, provided that such charges cannot be increased more than once in any 12 month period. The Supplier will give the Customer written notice of any such increase 3 months before the proposed date of increase. If such increase is not acceptable to the Customer, it shall notify the Supplier in writing within 4 weeks of the date of the Supplier’s notice and the Supplier shall have the right without limiting its other rights or remedies to terminate the Contract by giving 8 weeks written notice to the Customer.
5.3 The Supplier shall prepare a Schedule of Payment for the Customer based upon the Order. The Supplier shall invoice the Customer on a stage by stage basis in accordance with the Schedule. The Supplier reserves the right to request payment on account at the beginning of the contract.
5.4 If the Customer would like to make any variation to the Services that are within the capability and resources of the Supplier, the Supplier will confirm in writing within 3 business days as to whether the variation is accepted. If the variation results in increased work the Supplier’s remuneration shall be increased accordingly and any time estimates adjusted accordingly.
5.5 The Customer shall pay each invoice submitted by the Supplier:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier; and
(c) time for payment shall be of the essence of the Contract.
5.6 All amounts payable by the Customer 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 Customer, the Customer 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 Services at the same time as payment is due for the supply of Services.
5.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on late payments pursuant at a rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgement. The Customer shall pay the interest together with the overdue amount.
5.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set-off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
6.0 Intellectual Property Rights
6.1 All Intellectual Property Rights in or arising out of provision of the Services shall be owned by the Supplier, including, but not limited to, any original 3D geometry created, any original 2D concept or final imagery created, any source files used to create content, any software programs or script based software developed during provision of the Services, or any working documents.
6.2 Unless otherwise specified in writing within the quotation, any Intellectual Property Rights in the Deliverables are owned by the Supplier and the Customer shall be granted a non-exclusive, non-sublicensable, non-transferable license to use the Deliverables.
6.3 The Customer irrevocably waives any moral or similar non-transferable rights which it may have in respect of the Services or Deliverables. At the Supplier’s request, the Customer shall execute such documents and/or take such steps as may reasonably be necessary properly to transfer such rights to the Supplier or its nominee and otherwise to secure, protect and enforce such rights.
6.4 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written license from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
6.5 All Supplier Materials are the exclusive property of the Supplier.
6.6 The Supplier acknowledges that all Intellectual Property Rights in all materials, documentation or other information (including computerised information) provided by the Customer to the Supplier in the performance of the Supplier’s obligations under the Contract are the property of the Customer. The Customer will indemnify the Supplier against any loss or damage suffered or incurred by the Supplier as a result of a claim that the materials, documentation or other information provided by the Customer or the use by the Supplier thereof infringes the Intellectual Property Rights of any third party.
6.7 The rights and obligations of the Customer and the Supplier under this clause 6 shall survive termination of the contract.
7.1 The customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier, its employees, agents or subcontractors, and any other confidential information concerning the Supplier’s business, its products and services which the Customer may obtain. The Customer shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the Customer’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The Customer may also disclose such of the Supplier’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 7.1 shall survive termination of the Contract.
8.0 Limitation of Liability: The Customer’s attention Is particularly drawn to this clause and to clause 3.4
8.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2 Subject to clause 8.1:
(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, loss of goodwill or reputation, losses caused by business interruption, or otherwise for any direct or indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £10,000.
8.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.4 Once a proof has been approved by the Customer the Supplier shall under no circumstances whatever be liable to the Customer whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any defect (material or otherwise) that arise from or occur in Services produced or delivered in accordance with the approved Proof.
8.5 Clause 8.4 shall apply even if the defect in the Proof was a mistake of the Supplier.
8.6 This clause 8 shall survive termination of the Contract.
9.1 Without limiting its other rights or remedies either party may terminate the Contract by giving the other party not less than 1 months’ written notice.
9.2 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving notice to the other party if:
(a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable)fails to remedy that breach within 14 days after receipt of notice in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(d) a petition is filed, a notice given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.2(b) to clause 9.2(i) (inclusive);
(k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
(l) the other party’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(m) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
9.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.4 Without limiting its other rights or remedies, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and Supplier if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 9.2(b) to clause 9.2(m), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
10.0 Consequences of Termination
10.1 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied and costs incurred but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose connected with this Contract;
(c) the accrued rights, remedies, obligations and liabilities of the parties as at expirey of termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication survive termination shall continue in full force and effect.
11.0 Force Majeure
11.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or other party), failure of a utility service or transport network, act of God, war, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, power outages, fire, flood, storm or default of suppliers or subcontractors.
11.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
11.3 If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 4 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
12.1 Assignment and other dealings
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
(a) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by pre-paid first class post or other next working day delivery service, or by commercial courier, or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or if sent by email, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(a) 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 vaild, 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.
(b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.5 No Partnership or Agency
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as an agent for, or to bind, the other party in any way.
12.6 Third Parties
A person who is not a party to the Contract shall not have any rights to enforce its terms.
Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier.
12.8 Governing Law
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).