Terms and conditions – Horizon Digital Media Limited
Please find set out below the terms and conditions (Terms) upon which Horizon Digital Media Limited (we/us/our) provides its marketing (including print) services. Please read these terms carefully. They will apply to any contract made between us to the exclusion of any other terms you may seek to impose or incorporate or which are implied by trade, law, custom, practice or course of dealing. Should you have any queries in relation to any matter set out in these Terms, please do not hesitate to contact us and we will seek to clarify the matter of concern.
We are a limited company registered in England and Wales under company number 04845591 and have our registered office and trading address at Units 3-4 De Clare Court, Sir Alfred Owen Way, Pontygwindy Industrial Estate, Caerphilly CF83 3HU. Our VAT number is 811554354.
You can contact us by telephoning us on 02920 463047 or by e-mailing us at firstname.lastname@example.org.
If you wish to contact us in writing, or if any clause in these Terms requires you to give us notice in writing, you can send this to us by e-mail, by hand, or by pre-paid post to our trading address set out above. We will confirm receipt of this by contacting you in writing. If we have to contact you or give you notice in writing, we will do so by e-mail, by hand, or by pre-paid post to the address you initially provide to us.
On receipt of your enquiry for marketing services we will provide you with a written quotation setting out the services you require (Services) including the deliverables to be produced in the provision of the Services (Deliverables) our price and any other information we deem necessary (Quotation).
Before we commence the provision of the Services we require you to provide us with a purchase order or a written acceptance of our Quotation (Order).
Your Order constitutes an offer by you to purchase the Services in accordance with these Terms. Your order will only be deemed accepted when we issue you with a written acknowledgement of order or commence provision of the Services at which point a contract will come into existence between us upon these Terms (Contract).
Please note any quotation given by us remains valid for up to 30 days from date of issue only.
It is important that you consider the contents of your Order carefully as the Services will be supplied in accordance with the Order. You are responsible for notifying us if you think there is a mistake or require any changes to it. We will confirm any changes in writing to avoid any confusion between us.
Once your Order has been accepted by us should you cancel the same, you will be liable to pay for all Services delivered up to the date of cancellation and for any costs and expenses incurred by us in the performance of the Services up to the date of cancellation (including but not limited to the costs of any labour or materials).
Without prejudicing our rights mentioned above in respect of cancellation, we would in particular like to bring your attention to the fact that if we provide design services to you as part of the Services and you elect not to proceed with any Deliverables you will be liable to pay for all Services delivered up to the date of cancellation of your Order.
We will provide the Services in accordance with your Order using reasonable skill and care.
We will in the provision of the Services provide you with proofs, mock ups and other preliminary materials which we will require you to approve before we proceed to the next stage of performance of the Services.
Unless otherwise agreed our charges will include the cost of first stage proofs. Should you require further proofs, you may incur an additional charge at our then current rates.
We will use all reasonable endeavours to meet any performance dates set out in the Order but such dates are estimates only and time shall not be of the essence for the performance of the Services.
We reserve the right to perform the Services and deliver the Deliverables by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not you to cancel any other instalment.
We reserve the right to make any changes to the Services which are necessary to comply with any applicable laws or safety requirements or which do not materially affect the nature or quality of the Services. We will notify you of such changes.
We reserve the right to include the words “Designed by Horizon Digital Media Limited” on the Deliverables developed in the performance of the Services.
In providing the Services, additional services may be required. If additional services are required we will use all reasonable endeavours to advise you of the additional services and any additional costs (including an increase in our Charges) and the impact upon any agreed timescales. Save where such additional services are required as a matter of urgency we will not undertake any additional services without your consent.
To enable us to perform our obligations under the Contract you will:-
- cooperate with us in all matters relating to the provision of the Services;
- provide us with clear, timely and accurate instructions;
- comply with our reasonable instructions;
- provide us with such information, art or design works, content and documentation as we may reasonably require and ensure such information is accurate and complete in all material respects;
- promptly notify us of any inaccuracies in any information supplied by you and supply us with the correct information;
- where you are supplying any artwork, content or materials you will ensure the same are made available to us within specified timescales to enable us to perform our obligations under the Contract. You warrant that you are the owner of all rights in the Materials or are duly authorised to allow us to use the same in the provision of the Services;
- unless we have agreed to obtain the same on your behalf, you will be responsible for obtaining all necessary approvals, licences, consents or permissions to enable us to perform our obligations and you will comply at all times with such approvals, licences, consents or permissions;
- ensure any database which you require us to use in the provision of the Services contains names and contact information which are true and accurate and does not include the names and contact information for those customers/clients or potential customers/clients who have asked to be removed from the said database;
- ensure that any content you supply to be incorporated in the Services does not infringe any applicable laws or regulations or third party rights and is not deemed indecent, obscene, discriminatory or offensive in any way. We reserve the right to refuse to incorporate any such content in the Services.
Please note that if our performance of the Services is delayed or prevented by an act or omission on your part (or that of your officers, employees, agents or Contractors) or any failure to comply with your obligations (Default):-
(a) we may, without limiting our other rights and remedies, suspend performance of the Services until such time as the Default is remedied;
(b) we will not be liable for any costs; charges or losses you incur or sustain;
(c) you shall reimburse us on written request for any costs or losses we sustain or incur arising from your Default.
Unless otherwise agreed delivery of any Deliverables will take place at our trading address.
If you do not take delivery of the Deliverables within 7 days of us notifying you that the Services have been performed and the Deliverables are ready for delivery:-
(a) delivery will be deemed to have taken place on the expiry of the 7-day period; and
(b) we shall place the Deliverables into storage and we will charge you the costs and expenses of doing so (including any insurance costs).
Risk in the Deliverables passes to you on delivery.
Title to Deliverables will not pass to you until you have made payment in full for the Services. If before title to the Deliverables has passed you suffer an event set out in paragraphs (b) to (i) of the section headed Termination below, you will if we require deliver up possession of the Deliverables and if you fail to do so we may enter your premises for the purpose of recovering the same.
Our Charges for carrying out the Services are set out in the Quotation (Charges).
Our Charges are exclusive of VAT which will be added at the rate applicable at the time.
Our payment terms are set out in the Quotation. If no payment terms are stated in the Quotation or otherwise agreed in writing we will invoice you monthly and payment of our Charges must be made within 30 days of the date of our invoice. Any query in relation to our invoice must be raised within 48 hours of the date of our invoice otherwise our invoice shall be deemed accepted by you.
Payment by you of all sums due shall be made in full without deduction, set off or counterclaim.
If you do not make any payment due to us by the due date for payment we may (without affecting any of our other rights and remedies):-
(a) suspend the Services with immediate effect until you have paid us the outstanding amount; and/or
(b) charge interest to you on the overdue amount at the rate of 3% a year above the base rate of HSBC Bank Plc from time to time. This interest shall accrue on a daily basis from the due date until the actual payment of the overdue amount, whether before or after judgement. You must pay us interest together with any overdue amount.
Please also note your right to use any designs and/or Deliverables is dependent upon payment being made by you of our Charges.
On occasions we may engage the services of a debt collection agency to collect overdue amounts owed to us. You agree that we may pass your details to such agency for the purpose of collecting in the monies owed to us by you. Should it be necessary for us to engage the services of a debt collection agency to collect monies owed by you to us, you will be liable to pay any costs we may incur with such agency.
Changes to Supply:
If you require a change to the Services, please provide us with details of the requested change in writing. We will use all reasonable endeavours to accommodate your change. Upon receipt of your request, we will advise you of any impact of the proposed changes upon any agreed timescales, any necessary variations to our Charges and any other impact upon these Terms. No change will be implemented until such time as you and we have agreed the necessary changes and any additional Charges payable.
Intellectual Property Rights:
Unless otherwise agreed, all patents, rights to invention, copyright, design rights or any other intellectual property rights (IPR) in or arising out of the performance of the Services by us shall belong to us or the third party owner.
Subject to payment of our Charges, we will grant you a non-exclusive licence to use such IPR for the purpose of receiving the benefit of the Services.
You acknowledge that, in respect of any third party IPR we incorporate into the Services, your use of any such IPR is conditional on us obtaining a written licence from the relevant licensor on such terms as will entitle us to license such rights to you. You agree to comply with the terms of any third party licence agreement and to indemnify us against any damages, losses, costs or expenses we incur should you fail to do so.
Unless otherwise agreed, where you require us in carrying out the Services to use any third party IPR, you will be responsible for obtaining any licence or consents required to enable us to use such IPR. You will indemnify us against any damages, losses, costs or expenses we incur if our use of such IPR in accordance with these Terms is deemed to breach the rights of any third party.
If there is a problem with the Services:
We are committed to providing a high quality of service. If you are unhappy about any aspect of the Services please contact us as soon as reasonably possible and give us the opportunity to make good any defect in the Services provided.
Our liability to You:
The following provisions set out our entire financial liability to you (including without limitation any liability for the acts or omissions of our employees, agents and sub-Contractors in respect of:-
(a) any breach of Contract howsoever arising; and
(b) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising out of or in connection with this Contract.
All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.
We do not under any of these Terms exclude or limit in any way our liability for:
(a) death or personal injury caused by our negligence or the negligence of our employees, agents or sub-contractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 and by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and
(d) in any other circumstances where it would be deemed unlawful for us to limit or exclude our liability in any way.
We shall not be liable to you, whether in Contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract.
Our total liability to you in respect of all losses arising under or in connection with this Contract whether in Contract, tort (including negligence), breach of statutory duty or otherwise shall not exceed the Charges.
Without limiting its other rights or remedies, each party may terminate this Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of this Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach;
(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) 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 other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that 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) a floating charge holder over the assets of that 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 paragraphs (a) to (i) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
Without limiting our other rights or remedies, we may terminate this Contract with immediate effect by giving written notice to you if you fail to pay any amount due under this Contract on the due date for payment.
Effect of Termination:
Termination of this Contract shall be without prejudice to any rights or liabilities which have accrued at the date of termination.
On termination of this Contract you will immediately pay all outstanding unpaid invoices and interest and in respect of Services carried out, but for which no invoice has been raised (including but not limited to materials ordered for incorporation into the Services) we shall submit an invoice for all charges then due which you will pay immediately upon receipt.
Termination will not affect the provisions dealing with intellectual property rights, limitation on liability or confidentiality which shall remain in full force and effect.
Events outside our Control:
We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms that is caused by an Event Outside Our Control.
An Event Outside Our Control means any act or event beyond our reasonable control, including without limitation planning restriction, legislative changes, strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, adverse weather conditions, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications network services.
If an Event Outside Our Control takes place that affects the performance of our obligations under these Terms:
(a) we will contact you as soon as reasonably possible to notify you; and
(b) our obligations under these Terms will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will restart the Services as soon as reasonably possible after the Event Outside Our Control is over.
(c) If an Event Outside Our Control prevents us from commencing or restarting the Services within 3 months of the date of suspension, we reserve the right to review the Charges and to revise the same to take account of any increased costs in respect of the Services. We will advise you of any increased costs. Should you not agree to the increased costs, you may cancel the Contract.
A party (receiving party) 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 receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its Deliverables and services which the receiving party may obtain. The receiving party 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 receiving party'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 receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This term shall survive termination of the Contract.
Other Important Terms:
This Contract constitutes the entire agreement between you and us. You acknowledge that you have not relied on any statement, promise, assurance, representation, assurance or warranty made or given by or on behalf of us which is not set out in the Contract.
We may transfer or subcontract our rights and obligations under these Terms to another person or organisation, but this will not affect your rights or our obligations under these Terms.
Save as permitted under these Terms, no variation to these terms shall be valid unless agreed in writing by us.
You may only transfer your rights or your obligations under these Terms to another person if we agree in writing.
This Contract is between you and us. No other person shall have any rights to enforce any of its terms, whether under the Contracts (Rights of Third Parties Act) 1999 or otherwise.
Each of the paragraphs of these Terms operates separately.
If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
If we fail to insist that you perform any of your obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
This Contract is governed by English and Welsh law. you and we both agree that the courts of England and Wales will have non-exclusive jurisdiction.