1. Interpretation
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day a day (other than a Saturday, Sunday or public holiday) when banks in Edinburgh are open for business.
Charges the charges payable by the Customer for the supply of the Services in accordance with clause 5.
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 10.8.
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 Services from the Supplier.
Order the Customer’s order or request for Services.
Services the services supplied by the Supplier to the Customer as set out in the Specification.
Specification the description or specification of the Services provided in writing by the Supplier to the Customer.
Supplier Digital Six Limited, registered in Scotland with company number SC345983.
1.2 In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its personal representatives, successors or permitted assignees;
1.2.3 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;
1.2.4 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
1.2.5 a reference to writing or written includes e-mails.
2. Basis of contract
2.1 The Specification constitutes an offer by the Supplier to supply Services to the Customer in accordance with these Conditions. Unless otherwise agreed by the Supplier and the Customer, the Specification shall only be valid for acceptance for a period of 20 Business Days from its date of issue.
2.2 The Specification shall only be deemed to be accepted when the Customer issues written acceptance of the Specification to the Supplier 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 or representation 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 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.
3. Supply of Services
3.1 The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2 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.
3.3 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4. Customer’s obligations
4.1 The Customer shall:
4.1.1 ensure that the terms of the Order and any information it provides are complete and accurate;
4.1.2 co-operate with the Supplier in all matters relating to the Services;
4.1.3 provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects; and
4.1.4 obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start.
4.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
4.2.1 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;
4.2.2 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
4.2.3 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. Charges and payment
5.1 The Customer shall pay each invoice submitted by the Supplier in full within 30 days of the date of the invoice and time for payment shall be of the essence of the Contract.
5.2 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (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 the Services at the same time as payment is due for the supply of the Services.
5.3 Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to:
5.3.1 charge interest on the overdue amount at the rate of 5 per cent per annum above the then current Bank of England’s base lending rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgement, and compounding quarterly; and
5.3.2 suspend the supply of any of the Services.
5.4 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. 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. Intellectual property rights
6.1 The Customer warrants ownership of any work protected by copyright (or any other design right) which the Customer requires the Supplier to reproduce or develop in connection with the provision of the Services.
6.2 The Customer shall indemnify the Supplier in full for and against all claims, costs, expenses or liabilities whatsoever and howsoever arising, incurred or suffered by the Supplier, including without limitation all legal expenses and other professional fees (together with any VAT thereon) which the Supplier may incur relating to or arising out of any breach of the warranty given at clause 6.1.
6.3 Unless otherwise agreed between the Supplier and the Customer, all intellectual property rights in or arising out of or in connection with the Services shall be owned by the Supplier. For the avoidance of doubt, each party will own the IP that is held prior to the contract commencing.
7. Limitation of liability
7.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
7.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
7.1.2 fraud or fraudulent misrepresentation.
7.2 Subject to clause 7.1:
7.2.1 the Supplier shall not be liable to the Customer, whether in contract, tort employees, agents or subcontractors; or
7.2.2 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 not exceed the amount of value received under the contract by the Supplier up to and including the time of breach and is subject to a cap not exceeding the total value of the contract.
7.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
7.4 This clause 7 shall survive termination of the Contract.
8. Termination
8.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of that party being notified in writing of the breach.
8.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
8.3 The Supplier reserves the right to terminate the Contract, after giving not less than three months written notice to the Customer of its intention to do so.
8.4 If the Supplier gives notice to the Customer of its intention to terminate the Contract because the Supplier no longer supports any of the Services, the Supplier may offer (and the Customer may accept) alternative Services. However, the Customer shall be liable for all costs associated with the initial and ongoing provision of such alternative Services.
9. Consequences of termination
9.1 On termination of the Contract for any reason:
9.1.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
9.1.2 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or 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
9.1.3 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
10. General
10.1 Force majeure:
10.1.1 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 any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
10.1.2 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.
10.1.3 If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 2 days, 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.
10.2 Assignation and subcontracting:
10.2.1 The Supplier may at any time assign, transfer, 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 or agent.
10.2.2 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
10.3 Notices:
10.3.1 Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business.
10.3.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
10.3.3 This clause 10.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
10.4 Waiver:
10.4.1 A waiver of any right under the Contract 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 preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
10.4.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
10.5 Severance:
10.5.1 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
10.5.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
10.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
10.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
10.8 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by the Supplier.
10.9 Governing law and jurisdiction: This Contract, 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, Scottish law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of Scotland.
10.10 Internet browsers:
10.10.1 The Supplier and the Customer agree that, where the Services include the development or support of a website or websites, the Supplier shall ensure that the websites display and function correctly in the following internet browsers:
10.10.1.1 The latest stable version of Internet Explorer (Edge)
10.10.1.2 The latest stable version of Firefox at site launch
10.10.1.3 The latest stable version of Google Chrome at site launch
10.10.1.4 The latest stable version of Safari at site launch
10.10.2 Notwithstanding the provisions of clause 10.10.1, at the request of the Customer, the Supplier may agree to support additional internet browsers. However, the Customer shall be responsible for the cost of any additional support, which shall be agreed between the Supplier and the Customer in advance.
10.11 Website hosting:
10.11.1 The Supplier and the Customer agree that, where the Services include website and/or email hosting, the Supplier may outsource such Services (Outsourced Services) to a professional data hosting company (Hosting Company).
10.11.2 The Customer shall hold the Supplier harmless from and against any cost, losses, liabilities and expenses relating to or resulting from any failure of any Hosting Company to maintain the Outsourced Services (Downtime).
10.11.3 Notwithstanding the provisions of clauses 10.11.1 and 10.11.2, the Supplier will use best endeavours to remedy any Downtime and, if the Supplier deems it appropriate, instruct a different Hosting Company in connection with the Outsourced Services.
10.11.4 The Supplier and the Customer agree that website and /or email hosting costs are subject to change based on industry costs on receipt of communication from the supplier. This communication will be in the form of a letter and / or email with a minimum of two weeks’ notice.
10.12 Website database backup:
10.12.1 The Supplier and the Customer agree that, where the Customer’s website includes a database, the Supplier shall not be required to backup or otherwise retain copies of any database content (Data).
10.12.2 The Customer shall hold the Supplier harmless from and against any cost, losses, liabilities and expenses relating to or resulting from any loss of Data.
10.12.3 Notwithstanding the provisions of clauses 10.12.1 and 10.12.2, the Supplier will use reasonable endeavours to assist the Customer following any loss of Data.
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Digital Six
Codebase, Level L, 3 Lady Lawson Street, Edinburgh,
EH3 9DR
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