Advanta Terms & Conditions of Service
The following are the Advanta Terms & Conditions of Service that you will be deemed to have accepted when signing an order form, or confirming your acceptance of costs by reply email, or verbal confirmation via the telephone, or by using any of the services provided to you by Advanta.
This Agreement is made
Between:
(1) Advanta Productions Ltd who’s Registered Office is 29 Bridgford Road, West Bridgford, Nottingham. NG2 6AU (Advanta) and
(2) The Customer
Background
A contract for services between the Customer and Advanta Productions Ltd, a web service provider.
The precise nature of the services is as specified under Schedule 1 or otherwise in the order form as presented, or as posted on Advanta Productions Ltd’s website where
It is agreed as follows:
1. Definitions and interpretation
1.1 In this Agreement, unless the context otherwise requires, the following words have the following meanings:
Commencement Date as set out in schedule 1 ;
Initial Term the initial term referred to in clause 2;
Law any applicable legislation, EU regulation or directive having direct effect, or provision of common law, in each case having the force of law and any change to it then in force;
Notice includes any notice, demand, consent or other communication;
Price the price for the services set out in schedule 2;
Renewed Term a renewed term referred to in clause 2;
Services the provision of a web publishing service as more particularly described in Schedule 1;
Term the Initial Term and any Renewed Term.
1.2 In this Agreement, unless the context otherwise requires:
(a) words in the singular include the plural and vice versa and words in one gender include any other gender;
(b) a reference to a statute or statutory provision includes any subordinate legislation made under it, any repealed statute or statutory provision which it re-enacts (with or without modification), any statute or statutory provision which modifies, consolidates, re-enacts or supersedes it;
(c) a reference to any party includes its successors in title, permitted assigns, employees, agents and sub-contractors and clauses and schedules are to clauses and schedules of this Agreement and references to sub-clauses and paragraphs of the clause or schedule in which they appear; and
(d) the table of contents and headings are for convenience only and shall not affect the interpretation of this Agreement.
2. Duration
Subject to termination as set out in clause 12, this Agreement shall come into effect on the Commencement Date and shall remain in effect for 1 year, or less if agreed in writing by Advanta Productions Ltd under Schedule 1, which shall be the Initial Term. At the end of the Initial Term, or any subsequent term of it subject to renewal under this clause (a Renewed Term) this Agreement shall be renewed automatically for a period of 1 year (or other term as agreed in writing)
3. Obligations of Advanta Productions Ltd
3.1 Advanta Productions Ltd shall provide the Services as agreed under Schedule 1. Time shall not be of the essence in the performance of its obligations under this Agreement. Advanta Productions Ltd shall however endeavour to provide services in accordance with the service specification as agreed in writing with the Customer.
3.2 Notwithstanding any times or dates given for performance of the services Advanta Productions Ltd may make such changes to the times or dates of performance as may be necessary due to its reasonable operational requirements and shall where possible give the Customer reasonable notice of such changes. If such changes are made but as a result of any act or omission of the Customer Advanta Productions Ltd incurs additional costs, Advanta Productions Ltd may charge the Customer accordingly.
3.3 Advanta Productions Ltd may sub-contract performance of the whole or any part of its obligations under this Agreement.
3.4 In performing the Service, Advanta Productions Ltd shall comply with:
(a) all special conditions and safe working procedures notified in writing by the Customer to Advanta Productions Ltd in accordance with the Customers obligations under Law;
(b) Law relating to the performance of Advanta Productions Ltd obligations; and
(c) Good Operating Practice.
3.5 Advanta Productions Ltd shall carry out the services in accordance with the Law and to a standard as agreed with the Customer in writing. Such standard shall not be less than reasonable as would be expected from a web service provider of Advanta Productions Ltd’s experience and shall take into account Advanta Productions Ltd’s size, resources and manpower.
4. Obligations of the Customer
4.1 The Customer shall be deemed to have accepted the Services as satisfactory if the Customer has not notified Advanta Productions Ltd within 5 working days of completion of the Services.
4.2 The risk of loss or damage to the Customer’s web site shall pass to and remain with the Customer from the earlier of:
(a) the completion of the Services;
(b) the Customer receiving notice from Advanta Productions Ltd that completion of the Services is not possible;
(c) the Customer instructing Advanta Productions Ltd to delay Service for any reason.
4.3 The web site design shall remain the property of Advanta Productions Ltd and the Customer shall have no rights to it other than those set out in this Agreement. The output files as created by Advanta Productions Ltd shall however become the property of the Customer upon payment in full of the contract price.
4.4 The Customer shall:
(a) adequately insure its business for any necessary and inevitable business interruption loss as a result of ongoing web site design modifications;
(b) accept that whilst all care is taken in providing time estimates for resumption/initiation of web site services ,including marketing and sales, there exist certain imponderables that make it unwise to rely solely upon such estimates and means for marketing and selling their business services and products and Customers are advised to have in place an alternative scheme should such web site work overrun or not be complete by the agreed Completion date;
(c) be solely responsible for the safety, security and protection of the web site once in operation, unless otherwise agreed in writing between the parties.;
(d) be responsible for providing the Service specification which cannot be modified by the Customer without Advanta Productions Ltd written consent once the Services have been commenced on the Commencement date. In the event that such consent may be granted it shall be dependent upon such additional expense being agreed first between the parties.
4.5 If the web site design is lost, stolen or damaged due to the failure of the Customer in full or in part the Customer shall indemnify Advanta Productions Ltd in respect of such loss including the loss of profit and all other expenses.
4.6 The Customer shall be responsible for the marketing and use of the web site.
5. Description of services
5.1 If the Customer notifies Advanta Productions Ltd of any service change different from that the Service specification initially agreed Advanta Productions Ltd may (without prejudice to any other right or remedy available to it):
(a) suspend performance of the Services or
(b) adjust the Price.
5.2 Advanta Productions Ltd will not be obliged to provide the Services outwith the initial design specification as agreed under Schedule 1 except by later agreed variation.
5.3 Advanta Productions Ltd may at its sole discretion provide the Services for a period longer than the Initial or Renewed Term for the purposes of further testing and modifying the Services where defects have been claimed by the Customer.
5.4 Advanta Productions Ltd may refuse to deal with any late or frequent amendments to the agreed design/services specification by the Customer and Advanta Productions Ltd accepts no liability for the consequences of such refusal.
6. Price and Payment
6.1 In consideration of the provision of the Services, the Customer shall pay to Advanta Productions Ltd the amounts set out in Schedule 2,subject to variation as set out in clause 7.
6.2 Advanta Productions Ltd may make an additional charge for Services provided at the request of the Customer at times outside of normal working periods or which at the request of the Customer vary from the agreed specification. In this case Advanta Productions Ltd shall be entitled to such fees and costs as are agreed between the parties or where not agreed determined by the Director of Advanta Productions Ltd whose decision shall be final and binding between the parties.
6.3 Subject to any special terms agreed in writing between Advanta Productions Ltd and the Customer, Advanta Productions Ltd may invoice the Customer on or at any time after performance.
6.4 All payments to Advanta Productions Ltd shall be made against Advanta Productions Ltd invoices which shall be presented at the end of each calendar month during the period of the provision of the Services. All payments shall be made by the Customer within 30 days following the receipt by the Customer of Advanta Productions Ltd’s invoice save that payment of all outstanding invoices shall become due on the happening of any event set out in clause 12.2.
6.5 Payment shall be made in full by the Customer in accordance with this Agreement and the Customer shall not set-off any payment against any other sums claimed. However Advanta Productions Ltd shall be entitled to deduct or set off against any payment due by it to the Customer any sum that is claimed.
6.6 Time of payment shall be of the essence and Advanta Productions Ltd may at its discretion levy interest at the rate of 4% over and above the base rate from time to time of National Westminster Bank plc for all late payments.
6.7 All Prices are exclusive of Value Added Tax which shall be charged by Advanta Productions Ltd and be payable by the Customer at the appropriate rate.
6.8 Advanta Productions Ltd may require the Customer to pay a sum on account before the commencement of any Services to cover the agreed costs of the Services. Such sum shall only be debited upon production of an invoice by Advanta Productions Ltd to which the Customer either:
(a) agrees expressly or
(b) is deemed to agree if no query or objection is raised within 5 days of posting of the invoice.
Where a query or objection is raised in full or in part those elements of the invoice that are not contested may be debited from the monies on account. A note of this shall then be sent to the Customer.
7. Price adjustments
7.1 Where Advanta Productions Ltd provides Services throughout the year Advanta Productions Ltd may increase the charges and rates set out in Schedule 2 in any subsequent year to compensate for any increase in costs caused by any of the following:
(a) an increase in the Index of Retail Prices (all items) as published by the Central Statistical Office (or any replacement of that index);
(b) changes in Law applicable to the Services which shall include changes in taxes, duties, fees, licensing or other relevant Government charges.
7.2 Advanta Productions Ltd may only increase the Price for reasons other than those set out in Clause 7.1 with the consent of the Customer.
8. Liability and Indemnity
8.1 Except as expressly provided in this Agreement, all terms implied by Law in relation to the provision of the Services by Advanta Productions Ltd are excluded to the fullest extent permitted by Law.
8.2 No statement, description, information, warranty, condition or recommendation contained in any catalogue, price list, advertisement or communication or made verbally by Advanta Productions Ltd shall be construed to enlarge, vary or override in any way any of the provisions of this Agreement.
8.3 Advanta Productions Ltd accepts liability for death or personal injury to the extent that it results from its negligence.
8.4 Advanta Productions Ltd shall not be liable to the Customer for any breach of this Agreement caused directly or indirectly by any act or omission of the Customer.
8.5 Advanta Productions Ltd accepts no liability for any loss of or damage to any property of the Customer or property otherwise under its control.
8.6 Advanta Productions Ltd shall not be liable to the Customer for any direct or indirect or consequential loss (including, without limitation, economic loss or loss of profits or goodwill) or for any damage or expense of any nature in connection with the provision of the Services.
8.7 In substitution for all rights which the Customer would or might have had but for this Agreement Advanta Productions Ltd undertakes that if within 7 days of performance of the Services it appears that such Services have been performed defectively or not at all Advanta Productions Ltd will at its sole discretion either re-perform the Services or credit the Customer with the proportionate part of the Price. Any claim made under this clause shall be notified within 48 hours of the time when such defect was or might reasonably have been discovered.
8.8 Except as specifically provided elsewhere in this Agreement, or as required by Law Advanta Productions Ltd liability to the Customer for any act or omission shall be limited to the lower of (a) the annual value of the Agreement and three times the contract value or (b) £5,000.
8.9 Without prejudice to any other rights or remedies available to Advanta Productions Ltd the Customer shall fully indemnify Advanta Productions Ltd against all losses and costs arising from:
(a) any breach of the Customers obligations under this Agreement;
(b) any act or default of the Customer;
(c) any breach of Law by the Customer.
8.10 The provisions of this clause shall survive the termination of this Agreement howsoever caused.
9. Insurance
As and when requested by Advanta Productions Ltd in writing the Customer undertakes and agrees to take out and maintain insurance cover of a minimum of £100,000 to cover its liabilities under this Agreement and agrees to produce at Advanta Productions Ltd request a copy of the insurance policy or policies and the relevant renewal receipts for inspection by Advanta Productions Ltd.
10. Force majeure
Advanta Productions Ltd shall not be deemed to be in breach of this Agreement, or otherwise be liable to the other, by reason of any delay in performance or non-performance of any of its obligations under this Agreement to the extent that such delay or non-performance is due to any cause beyond its reasonable control including but not limited to the acts, defaults or omissions of suppliers or sub-contractors or strike, lockout or other form of industrial action or unavailability of equipment or utilities including but not limited to electricity and telephone supplies and/or internet access due to technical difficulties.
11. Suspension of Services
11.1 Advanta Productions Ltd may suspend performance of the Services if at any time it has reasonable cause to believe that the Customer will not be able to meet its obligations under this Agreement. Any suspension of Services shall not affect the rights of Advanta Productions Ltd to payment.
12. Termination
12.1 Either party to this Agreement may terminate it by giving to the other 1 month’s notice in writing to expire at the end of each anniversary of the Commencement Date.
12.2 Advanta Productions Ltd may by notice in writing immediately terminate this Agreement if the Customer shall:
(a) expressly or impliedly repudiate this Agreement by refusing or threatening to refuse to comply with any provision of this Agreement;
(b) be incompetent, guilty of gross misconduct and/or any serious or persistent negligence in its obligations under this Agreement;
(c) commit a breach of this Agreement which in the case of a breach capable of remedy shall not have been remedied within 30 days of the receipt of a notice from Advanta Productions Ltd identifying the breach and requiring its remedy; or
(d) be unable to pay its debts or enters into compulsory or voluntary liquidation (other than for the purpose of effecting a reconstruction or amalgamation in such manner that the company resulting from such reconstruction or amalgamation if a different legal entity shall agree to be bound by and assume the obligations of the Customer) or compounds with or convenes a meeting of its creditors or has a receiver or manager or an administrator appointed or ceases for any reason to carry on business or takes or suffers any similar action which in the opinion of Advanta Productions Ltd means that the Customer may be unable to pay its debts.
12.3 If Advanta Productions Ltd terminates the Agreement under the provisions of this Clause the Customer will pay to Advanta Productions Ltd all costs, losses, claims, damages and expenses incurred by Advanta Productions Ltd as a result of the Customers breach and the consequent termination.
12.4 Termination of this Agreement shall be without prejudice to any rights or liabilities of either party, which may have accrued up to the time of termination.
12.5 At Advanta Productions Ltd sole discretion where the contract between Advanta Productions Ltd and the customer is prematurely terminated by the Customer, with/without any breach of confidentiality, Advanta Productions Ltd shall be entitled to a sum of liquidated damages amounting to 75% of the outstanding price accruable for the unexpired period to the natural end date of the agreement-such sum representing a fair compensation of time, effort, up-front costs and industry invested and it is agreed that this clause does not operate as a penalty clause and is effective in law.
12.6 Upon termination any services provided shall come to an end unless they are continued by mutual agreement in writing.
13. Assignment
13.1 This Agreement shall be binding on and enure for the benefit of the successors in title of the parties. Such rights shall not be assignable by the Customer without the prior written consent of Advanta Productions Ltd.
13.2 Advanta Productions Ltd may assign the benefit of this Agreement.
14. Confidentiality
14.1 The parties shall at all times keep confidential information acquired as a result of the Agreement. This obligation shall not apply to information which either party is required to disclose under Law or where required by regulatory agencies or where necessary required for the performance of professional services.
14.2 In particular for the duration of this agreement and for a period in any event not exceeding 6 years from the date of disclosure by Advanta Productions Ltd to the Customer of the agreed design specification the Customer:
(a) Agrees to keep all design information confidential;
(b) Agrees to keep all records of the design in safe custody;
(c) Agrees not to permit or disclose to third parties orally or in writing the details of the design without Advanta Productions Ltd written consent obtained from a proprietor of the company;
(d) Agrees not to make any use of the design information or any adaptation or variation of the same without Advanta Productions Ltd written consent obtained from a proprietor of the company;
(e) Agrees to return to Advanta Productions Ltd all copies of the terms and conditions of the agreement within 1 month of Advanta Productions Ltd’s written request;
15. General
15.1 This Agreement together with any documents referred to in this Agreement sets out the entire agreement and understanding between the parties in respect of the subject matter of this Agreement.
15.2 The Customer acknowledges that it has entered into this Agreement in reliance only upon the representations, warranties and promises specifically contained or incorporated in this Agreement and, save as expressly set out in this Agreement, Advanta Productions Ltd shall have no liability in respect of any other representation, warranty or promise made prior to the date of this Agreement unless it was made fraudulently.
15.3 To the extent that any provision of this Agreement is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be deemed not to be a part of this Agreement, it shall not affect the enforceability of the remainder of this Agreement nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.
15.4 No purported variation of this Agreement shall be effective unless it is in writing and signed by or on behalf of each of the parties.
15.5 The rights, powers and remedies conferred on any party by this Agreement and remedies available to any party are cumulative and are additional to any right, power or remedy which it may have under general law or otherwise.
15.6 Either party may, in whole or in part, release, compound, compromise, waive, or postpone, in its absolute discretion, any liability owed to it or right granted to it in this Agreement by the other party without in any way prejudicing or affecting its rights in respect of that or any other liability or right not so released, compounded, compromised, waived or postponed.
15.7 No single or partial exercise, or failure or delay in exercising any right, power or remedy by Advanta Productions Ltd shall constitute a waiver by Advanta Productions Ltd of, or impair or preclude any further exercise of, that or any right, power or remedy arising under this Agreement or otherwise.
15.8 Unless expressly provided in this Agreement, no term of this Agreement is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
16 Notices
16.1 Any notice to a party under this Agreement shall be in writing signed by or on behalf of the party giving it and shall, unless delivered to a party personally, be left at, or sent by prepaid first class post or prepaid recorded delivery (but not, for the avoidance of doubt, or facsimile or e-mail) to the address of the party as set out on page 1 of this Agreement or as otherwise notified in writing from time to time.
16.2 Notices shall be deemed to be received on the working day following posting or, where delivered by hand, within 2 working hours on the same day.
16.3 A party shall not attempt to prevent or delay the service on it of a notice connected with this Agreement.
17 Governing law and jurisdiction
17.1 This Agreement shall be governed by and construed in accordance with the laws of England and Wales.
17.2 Each of the parties irrevocably submits for all purposes in connection with this Agreement to the exclusive jurisdiction of the courts of England.
This Agreement has been signed and dated on the corresponding order form or through opt-in confirmation where the purchase is made electronically.