Terms and conditions

Terms and Conditions of Business

These Terms and Conditions are the standard terms for the provision of services by PrimarySite Limited a Company registered in England under number 5533790, whose registered office is 20 Appleton Gate, Newark, Nottinghamshire NG24 1JY (‘We/Us/Our’)

1. Definitions and Interpretation

1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:

“Business Day”

means any day other than a Saturday, Sunday or bank holiday;

“Calendar Day”

means any day of the year;

“Contract”

means the contract for the provision of Services;

“Deposit”

means an advance payment made to Us under sub-Clause 5.5;

“Intellectual Property Rights”

means copyright (and related rights), designs, patents, trademarks, and all other intellectual property rights that may exist in anything that We may create or produce as part of the Services. This includes all such rights, whether they are registered or unregistered, and the rights to apply for renewals or extensions of those rights (where relevant);

“Month”

means a calendar month;

“Price”

means the price payable for the Services;

“Design Services”

means the services which are to be provided by Us to you as detailed in our quotation/order form and accepted by you;

“Annual Licence Fee”

the fee payable for services provided by Us after the completion of the Design Services

“Quotation Price”

means the price payable for Services which We may offer you from time to time;

“Services”

means the Design Services and the Annual Licence Fee

2. The Contract

2.1 These Terms and Conditions (to the exclusion of any other contract terms) govern the sale and provision of Services by Us. They form the basis of the Contract between Us and you. Before accepting our quotation, please make sure that you have read these Terms and Conditions carefully. If you are unsure about any part of them, please ask Us for clarification.

2.2 Nothing provided by Us including, but not limited to, sales and marketing literature, price lists and other documents constitutes a contractual offer capable of acceptance.

2.3 A legally binding contract between Us and you will be created upon your written acceptance of our quotation.

3. Changes and Cancellation

3.1 If you tell Us you want to change the Services before we start providing them We will inform you in writing of any change to the Price.

3.2 If You wish to cancel the contract for the Design Services after we have started work on the provision of the Design Services then We reserve the right to charge you for any work completed by Us up to that point and any deposit payment made by you will be non-refundable.

3.3 We may cancel the contract for the Services at any time before We begin providing the Services due to the unavailability of required personnel or materials, or due to the occurrence of an event outside of Our reasonable control. If such cancellation is necessary We will inform you as soon as is reasonably possible. If you have made any payments to Us under Clause 4 (including, but not limited to the Deposit), the payment(s) will be refunded as soon as is reasonably possible, and in any event within 14 Calendar Days of Us informing you of the cancellation. Cancellations will be confirmed in writing.

3.4 Once We have begun providing the services associated with your Annual Licence Fee you may cancel those services but any annual licence fee paid by You is non refundable

3.5 If any of the following happens you may cancel the Services and the Contract immediately by giving Us written notice.:

3.5.1 We have breached the Contract in any material way and have failed to remedy that breach within 30 days of you asking Us to do so in writing; or

3.5.2 We enter into liquidation or have an administrator or receiver appointed over Our assets; or

3.5.3 We are unable to provide the Services due to an event outside of Our control (as under sub-Clause 8.2.4);

3.6 If any of the following happen, We may cancel the Services and the Contract immediately by giving you written notice.:

3.6.1 You fail to make a payment on time as required under Clause 4 (this does not affect our right to charge interest on overdue sums under sub-Clause 4.8); or

3.6.2 You have breached the Contract in any material way and have failed to remedy that breach within 30 days of Us asking you to do so in writing; or

3.6.3 We are unable to provide the Services due to an event outside of Our control (for a period longer than that in sub-Clause 8.2.5).

3.7 For the purposes of this Clause 3 (and in particular, sub-Clauses 3.5.1 and 3.6.2) a breach of the Contract will be considered ‘material’ if it is not minimal or trivial in its consequences to the terminating party (i.e. you under sub-Clause 3.5.1 and Us under sub-Clause 3.6.2). In deciding whether a breach is material no regard will be had to whether it was caused by any accident, mishap, mistake or misunderstanding.

4. Price and Payment

4.1 The Price of the Design Services will be that shown in Our Quotation Price in place at the time you accept our quotation.

4.2 Any Quotation Price will be valid for 30 days.

4.3 Our Prices for the Annual Licence Fee may change at any time

4.4 All Prices exclude VAT which will be added to the Price at the rate applicable when any payment is due.

4.5 Before We begin providing the Design Services, you may be required to pay a Deposit of an amount to be agreed with you. The due date for payment of your Deposit and the balance due will be included in Our quotation or other document in writing.

4.6 The balance of the Price for the Design Services will be payable once We have notified you that we have completed the Design Services.

4.7 Where we are providing the services associated with the Annual Licence Fee then payment will be required from you annually in advance

4.8 If you do not make payment to Us on the due date or dates We may charge you interest on the overdue sum at the rate set from time to time by The Late Payment of Commercial Debts (Interest) Act 1998. Interest (calculated on a daily basis) will accrue from the due date for payment until the actual date of payment of the overdue sum in cleared funds, whether before or after judgment. You must pay any interest due when paying an overdue sum.

5. Providing the Services

5.1 We will provide the Services with reasonable skill and care, consistent with best practices and standards in Our industry.

5.2 We will begin providing the Services on a date specified by Us.

5.3 We will continue providing the Services until whichever is the later of our completing the Design Services or (if the Services include the Annual Licence Fee) cancellation of the same by you.

5.4 We will make every reasonable effort to complete the Design Services on time and in accordance with your Order however time shall not be of the essence of any contract between you and Us. We cannot be held responsible for any delays if an event outside of Our control occurs. Please see Clause 8 for events outside of Our control.

5.5 If We require any information or action from you in order to provide the Services, We will inform you of this as soon as is reasonably possible.

5.6 If the information or action we need from you is delayed, incomplete or otherwise incorrect, We will not be responsible for any delay caused to the delivery of your Design Services as a result. If additional work is required from Us to correct or compensate for a mistake made as a result of incomplete or otherwise incorrect information or action on your part, We will charge you a reasonable additional sum for that work.

5.7 In certain circumstances (for example where there is a delay in you sending Us information or taking action required under sub-Clause 5.5) We may suspend or cancel the Design Services (and will inform you of that suspension in writing).

5.8 In certain circumstances (for example where We encounter a technical problem or for planned maintenance work) We may need to suspend the services associated with the Annual Licence Fee in order to resolve the issue. Unless the issue is an emergency and requires immediate attention We will inform you in advance before suspending the Services.

5.9 If the services associated with the Annual Licence Fee are suspended under sub-Clauses 5.7 or 5.8, you will be required to pay for them during the period of suspension.

5.10 If you do not pay Us for the Services as required by Clause 4, We may at our option either suspend the Services until you have paid all outstanding sums due or cancel the contract between you and Us. If this happens, We will inform you in writing. This does not affect Our right to charge you interest under sub-Clause 4.8.

6. Intellectual Property Rights

6.1 During the course of providing the Design Services to you, We will create or produce original work for you which embodies certain Intellectual Property Rights (such as copyright or patents).

6.2 We will retain ownership of any and all Intellectual Property Rights that may exist in the Design Services. We will grant to you a royalty-free, non-exclusive licence to use such Intellectual Property Rights. The licence granted under this sub-Clause 6.2 will continue indefinitely as a perpetual licence whilst there is a contract in place to provide services to you. Any such licence shall automatically revoke if you do not pay us any sums due to us or if you cancel your contract with us to provide services described in your annual licence fee.

6.2 If the Contract is cancelled under Clause 3, the licence granted under sub-Clause 6.2 may also be cancelled in full or in part and you will no longer be permitted to use all or part of the Intellectual Property Rights created or produced for you.

6.3 If any documents, forms, contracts or other formalities are required to enable Us to grant the licence to you under sub-Clause 6.2, We will ensure that any and all such documents, forms, contracts or other formalities are executed, performed and complied with.

7. Our Liability

7.1 Our liability to you for breach of contract or negligence on Our part shall, subject to the remaining provisions of this Clause, be limited to the amount of insurance cover held by Us from time to time

7.2 We do not exclude or limit our liability to you for death or personal injury caused by our negligence (including that of Our employees, agents or sub-contractors) or for fraud or fraudulent misrepresentation.

7.3 We are not liable to you for the following types of losses (in each case whether direct, indirect or consequential) and whether they are caused by our negligence or otherwise: loss of income or revenue, loss of business, loss of profits or contracts, loss of anticipated savings, loss of goodwill, loss of software or data, wasted expenditure (such as pay per click advertising costs) or wasted management or office time.

8. Events Outside Our Control (Force Majeure)

8.1 We will not be liable for any failure or delay in performing Our obligations where that failure or delay results, directly or indirectly, from any cause that is beyond Our reasonable control. Such causes include, but are not limited to: power failure, internet service provider failure, strikes, lock-outs or other industrial action by third parties, riots and other civil unrest, fire, explosion, flood, storms, earthquakes, subsidence, acts of terrorism (threatened or actual), acts of war (declared, undeclared, threatened, actual or preparations for war), epidemic or other natural disaster, or any other event that is beyond Our reasonable control.

8.2 If any event described under this Clause 8 occurs that is likely to adversely affect Our performance of any of Our obligations under these Terms and Conditions:

8.2.1 We will inform you as soon as is reasonably possible;

8.2.2 Our obligations under these Terms and Conditions will be suspended and any time limits that We have agreed to will be extended accordingly;

8.2.3 We will inform you when the event outside of Our control is over and provide details of any new dates, times or availability of Services as necessary;

8.2.4 If an event outside of Our control occurs and you wish to cancel the Contract, you may do so in accordance with your right to Cancel under sub-Clause 3.5.3;

8.2.5 If the event outside of Our control continues for more than one calendar month, We will cancel the Contract in accordance with Our right to cancel under sub-Clause 3.6.3 and inform you of the cancellation.

9. Complaints and Feedback

9.1 We always welcome feedback from Our customers and, whilst We always use all reasonable endeavours to ensure that your experience as a customer of Ours is a positive one, nevertheless We want to hear from you if you have any cause for complaint. Please address any complaints in writing to The Sales & Marketing Director.

10. How We Use any Personal Information (Data Protection)

10.1 All personal information that We may use will be collected, processed and held in accordance with the provisions of EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) and your rights under the GDPR.

10.2 For complete details of Our collection, processing, storage, and retention of personal data including, but not limited to, the purpose(s) for which personal data is used, the legal basis or bases for using it, details of your rights and how to exercise them, and personal data sharing (where applicable), please refer to Our Privacy Notice available from Us.

11. Other Important Terms

11.1 We may transfer (assign) Our obligations and rights under these Terms and Conditions (and under the Contract, as applicable) to a third party (this may happen, for example, if We sell Our business). If this happens You will be informed by Us in writing. Your rights under these Terms and Conditions will not be affected and Our obligations under these Terms and Conditions will be transferred to the third party who will remain bound by them.

11.2 You may not transfer (assign) your obligations and rights under these Terms and Conditions (and under the Contract, as applicable) without Our express written permission.

11.3 The Contract is between you and Us. It is not intended to benefit any other person or third party in any way and no such person or party will be entitled to enforce any provision of these Terms and Conditions.

11.4 If any of the provisions of these Terms and Conditions are found to be unlawful, invalid or otherwise unenforceable by any court or other authority, that / those provision(s) shall be deemed severed from the remainder of these Terms and Conditions. The remainder of these Terms and Conditions shall be valid and enforceable.

11.5 No failure or delay by Us in exercising any of Our rights under these Terms and Conditions means that We have waived that right, and no waiver by Us of a breach of any provision of these Terms and Conditions means that We will waive any subsequent breach of the same or any other provision.

12. Governing Law and Jurisdiction

12.1 These Terms and Conditions, the Contract, and the relationship between you and Us (whether contractual or otherwise) shall be governed by and construed in accordance with the law of England & Wales.

12.2 Any dispute, controversy, proceedings or claim between you and Us relating to these Terms and Conditions, the Contract, or the relationship between you and Us (whether contractual or otherwise) shall be subject to the jurisdiction of the courts of England, Wales, Scotland, or Northern Ireland, as determined by your residency.

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