1. Terms and conditions
1.1 These terms and conditions together with the invoice, quote or letter to which they are attached (the “special conditions”) will form a binding contract between the client named on the special conditions (the “client”) and Orchard Post which shall constitute the entire agreement between the client and Orchard Post and apply to any trading agreement or other contract or arrangement between the client and Orchard Post;
1.2 These terms apply to the exclusion of all other terms or conditions of contract the client may propose and shall not be varied unless agreed in writing and signed by Orchard Post.
2. Orchard
2.1 In consideration of the payment by the client to Orchard Post of the fees as set out in the special conditions, Orchard Post agrees during the term, to provide to the client the services and deliverables in accordance with the special conditions and as more particularly described in the proposal (where such exist), with reasonable and due care in accordance with and subject to these terms.
3. Client
3.1 The client will co-operate with and act in good faith towards Orchard Post and provide such source materials including those listed in the special conditions as client content as Orchard Post requires to carry out its obligations here under.
4. Payment
4.1a The client shall pay Orchard Post the fees and any disbursements without deduction or set-off (with vat thereon) within 30 days of receipt of an invoice.
4.1b 50% deposit required on larger value project fees. This will be set out within the project quote.
4.2 Orchard Post shall be entitled to charge interest on any overdue payment at the rate of 8% over base rate of Bank of England at the time.
4.3 Orchard Post may charge additional fees in accordance with its then prevailing rates in the event of:
4.3.1 Delays caused by the client including its failure to properly and / or timeously provide Orchard Post with such information, client content, instructions, media or approvals as are reasonably required for the supply of the deliverables and the provision of the services;
4.3.2 Changes to the cost of labour, materials, services and other circumstances outside of Orchard Post’s reasonable control.
4.3.3 The client requiring the supply of services or deliverables in addition or in variation to those described in the special conditions subject to clause 4.4 Below; 4.3.4 Agreed third party expenses.
4.4 In the event that the client requires any change or alteration to the services or deliverables (“change”), Orchard Post shall confirm to client:
4.4.1 The nature of the change;
4.4.2 The procedures for implementation of such change; and
4.4.3 The variation to the fees.
4.5 Unless advised to cease work by the client, Orchard Post will continue to perform and be paid for the services and or deliverables as if the items specified in 4.4.1. To 4.4.3 Had been agreed.
5. Intellectual property rights / confidentiality
5.1 Subject to our obligations as set out in 5.6 Below all know-how copyright, design right, registered designs, trade marks, patents, database rights and confidential information and ideas and all other rights whatsoever of a like nature world wide whether registered or not of whatever nature devised, created or commissioned by Orchard Post, used devised or created in supplying the services or deliverables under this agreement will vest in and belong to Orchard Post.
5.2 All copyright and other rights in any software included in the deliverables shall vest in and belong to Orchard Post.
5.3 The client shall have the rights of use set out in the special conditions only upon receipt by Orchard Post of the fees. Where no such rights of use are specified the client is granted a non-exclusive license to use the deliverables for the purpose specifically described in the proposal. Such rights of use shall apply only to those ideas, concepts, proposals and elements of the deliverables which Orchard Post is specifically requested to proceed with and not to any original ideas, concepts or proposals of Orchard Post pitched or suggested to client but not further explored by Orchard Post for the client hereunder, all of which shall be retained by Orchard Post. The use of all such retained elements and the extension of the rights of use in relation
to those retained elements shall be subject to the payment of additional fees as further agreed in writing.
5.4 The client grants Orchard Post a non-exclusive royalty free license to use the client content for all purposes relating to this agreement and warrants that it is fully entitled to grant Orchard Post these rights and that the client content are free of racist, defamatory, obscene and other legally restricted material.
5.5 Client undertakes to Orchard Post to indemnify and hold harmless Orchard Post in full and defend at its own expense Orchard Post against all costs, damages and losses
incurred by it arising out of its use of the client content or its breach of this clause 5. 5.6 Each party undertakes that it will keep secret and confidential the terms of this agreement and any information supplied by either party in connection with this agreement or in connection with the business of the other or in connection with the proposal and shall only disclose such information or part thereof (except to its own employees and advisers and then only on a need to know basis) with the other party’s prior written consent provided that this clause shall not extend to information which was and can be shown to be rightfully in the possession of the client prior to the commencement of the negotiations leading to this agreement or which is in the public domain (other than as a result of a breach of this clause);
5.7 The client shall not modify, adapt or translate the deliverables or any part of the deliverables without the prior written consent of Orchard Post or as otherwise permitted by law. All modifications, adaptations and translations of the deliverables shall belong to and vest in Orchard Post.
5.8 Orchard Post shall be entitled to use the client’s name and deliverables for portfolio, advertising and marketing purposes.
6. Acceptance
6.1 Client shall read and or inspect the deliverables on delivery and shall notify Orchard Post immediately if it wishes to reject any part of the deliverables because such do not comply with the proposal or are defective in material and workmanship whereupon Orchard Post shall, if such defect is proved, be given 15 days within which to remedy the defect.
6.2 If the deliverables are not rejected within 48 hours of delivery then client shall be deemed to accept the deliverables.
7. Liability and warranty
7.1 Subject to clause 7.2 Below, Orchard Post’s liability for any loss or damage direct or otherwise and howsoever caused whether in tort, contract or otherwise shall not exceed the fees invoiced by Orchard Post to the client for the deliverables and the service.
7.2 Orchard Post shall not be liable to the client for any damages of anykind, including without limitation compensatory, direct, indirect or consequential damages, loss of data, business, revenue, income, profit, anticipated savings, reputation or goodwill, loss of or damage to property and claims of third parties. For the avoidance of doubt, Orchard Post does not limit its liability for death or personal injury to the extent only that it arises as a result of the negligence of Orchard Post.
7.3 When instructions or advice are given or received orally by Orchard Post, it shall have no liability to the client for any misunderstanding or misrepresentation which may arise in relation thereto except in relation to fraudulent misrepresentations. 7.4 Orchard Post shall have no liability to client in respect of the client content. The Client agrees to collect the client content within 2 months of delivery of the deliverables failing which Orchard Post may dispose of them.
7.5 Client agrees to indemnify and keep indemnified Orchard Post against all loss and damage which arises due to a breach by the client of the intellectual property, privacy or other rights of any third party.
8. Legislation and third party materials
8.1 The client shall be responsible for and notify Orchard Post of all and any applicable rules, regulations, codes of practice and laws relating to its use and operation of the deliverables including without limitation any obligations under the data protection act 1998; regulation of investigatory powers act 2000; competition act 1998; disability discrimination act 1995 and equivalent legislation. Orchard Post shall not be liable to the client in relation to such legislation and gives no warranty, representation or undertaking in relation thereto, unless otherwise agreed in writing. 8.2 Orchard Post gives no warranty, representation or undertaking in relation to any Third party materials or works and the client agrees that it is responsible for its selection and use of third party materials and works in relation to the proposal, services and deliverables and it shall be responsible for making reasonable enquiries into the copyright and like rights of such third party materials and works.
8.3 Subject to and provided that Orchard Post acts in accordance with clause 5 above, the client agrees that it is responsible for its selection and use of all deliverables and contracting with any third parties in relation thereto and that it shall be responsible for making reasonable enquiries into the copyright and like rights in any deliverables.
8.4 Subject to the foregoing Orchard Post shall have no liability to the client whatsoever in relation to the services and deliverables and gives no warranty and makes no representation as to whether deliverables contain or are free from racist, defamatory, sexually explicit, inflammatory, obscene or other legally restricted
material and explicitly excludes all and any liability in relation thereto.
9. Termination
9.1 Orchard Post shall be entitled to terminate this agreement upon 3 months’ notice or the client’s material breach (including without limitation non-payment of any sum due) unless the client remedies such breach within 7 days of its occurrence.
9.2 Orchard Post will not be liable in any amount for failure to perform any obligation Under this agreement if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of Orchard Post, including without limitation, internet outages, communications outages, fire, flood, war or act of god. 9.3 The client may not unilaterally cancel its order of the services or deliverables or Otherwise terminate this agreement (save in the event of a material breach by Orchard Post of a fundamental term of this agreement) at any time without payment of
the fees in full.
9.4 During the course of this agreement and for a period of 12 months afterwards, the client shall not solicit the staff of Orchard Post or any person employed or engaged by Orchard Post or entice them to transfer their employment or services including for, but not limited to, the provision of services and deliverables.
10. General
10.1 Nothing in this agreement shall be deemed to constitute a partnership or agency relationship between the parties and neither of the parties shall do or suffer to be done anything whereby it may be represented as a partner or agent of the other party.
10.2 If at any time any part of this agreement is or becomes unenforceable, such part will at Orchard Post’s option be construed as far as possible to reflect the parties’ intentions and the remainder of the provisions will remain in full force and effect.
10.3 No forbearance, delay or indulgence by either party in enforcing the provisions of this agreement shall prejudice or restrict the rights of that party nor shall any waiver of rights operate as a waiver of any subsequent breach of this agreement.
10.4 The client shall not assign the benefit or burden of this agreement without the prior written consent of Orchard Post.
10.5 No person who is not a party to this agreement shall be entitled to enforce any of the terms pursuant to the contracts (rights of third parties) act 1999.
10.6 These terms are made and shall be construed in accordance with the laws of England and the parties submit to the exclusive jurisdiction of the english courts. Prior to issue of any proceedings the parties shall meet to discuss the dispute and attempt in good faith to reach a resolution, failing which the matter shall be referred to non binding mediation