The following terms cover the full scope of services provided by E A Deane Holdings Limited trading as Bannermation (“Bannermation”) to their clients (“Client”/“Clients”) as parties (“Party”/”Parties”). These terms detail a contract which is binding when an instruction is received from the Client to begin a project, including any service that is provided to Clients.
Bannermation’s services (“Services”) target Internet companies and users of the World Wide Web and include, but are not limited to, the development and design of banner advertisements for websites and online marketing campaigns.
Clients periodically take up Bannermation’s services for individual projects.
Bannermation provides its Services based on the terms set out below.
“Affiliates”
These are ultimate holding companies of Parties or subsidiaries of Parties or subsidiaries (both direct or indirect) of Parties’ ultimate holding companies. ‘Subsidiary’ and ‘holding company’ are as set out in s1159 of the Companies Act 2006.
“Deliverable”
This means a banner advertisement, tangible work or other asset that make(s) up the Services set out in the Proposal or Service Order.
“Intellectual Property Rights”
These include all copyrights, trademarks, patents, design rights (both registered and unregistered) and service marks. This includes all possible applications these might have as well as trade secrets, rights to confidence, know-how, interest, title and other industrial and intellectual property rights as applicable in all areas of the world.
“Proposal”
Bannermation’s offer to provide the Client with Services.
“Project”
This is as set out in a Service Order or Proposal and includes one or more specified Services undertaken for a Client.
“Price”
This is as set out in the Proposal of Service Order and is the price charged for a Project.
“Retained Copyright”
Bannermation’s own Intellectual Property Rights before a Project begins, including those which are not specific to any Project and/or are general.
“Purchase Order”
This is a Client’s request that Bannermation carries out a Project.
“Service Order”
Bannermation’s confirmation that they will provide the Client with a Project.
“Specification”
As set out in the Proposal of Service Order, the Specification of Services includes both the technical and functional aspects of a Service as well as other areas.
“Third Party Copyright”
Third party Intellectual Property Rights.
“Website”
One or more webpages that the Client owns and operates to provide Internet access to text, data images and other features owned or operated by the Client.
“Working Hours”
Monday – Friday 9.00am to 5.30pm GMT (with the exception of UK bank and public holidays).
1.1 Bannermation will only carry out their Services using competent personnel with the necessary skills, knowledge, qualifications, training and experience to carry out the job with care and due diligence.
1.2 Bannermation adheres to best practice within the industry when providing Services and does so in a manner that fits with any reasonable request made by the Client and, where necessary, according to their reasonable instructions.
2.1 Value Added Tax (‘VAT’), where applicable, is not included in Prices.
2.2 Invoices must be paid by the Client within 30 days from the issue date, unless other arrangements have been agreed in writing.
2.3 Bannermation’s Prices are estimates made with all sincerity but the company reserves the right to reasonably change an estimate should there be a variation to the Project in terms of specified amounts or its nature or complexity arising due to:
2.3.1 Bannermation receiving inaccurate information from the Client; or
2.3.2 the Clients needing additional Services that exceed those set out in the original Proposal.
2.4 Prices do not include any of the following (except where specifically stated);
2.4.1 licensing costs associated with Third Party Copyright that need to be included in a Product or Service (such as stock photographs and items of software); and
2.4.2 costs associated with third-party advertising across social network campaigns advertising on a pay-per-click basis; and
2.4.3 other reasonably allowable miscellaneous expenses, for example travel and subsistence, that could arise from providing the Service.
The Client will always be consulted and agreement reached as to these costs before they are levied and invoiced according to these terms.
2.5 The Client will not withhold any monies owed to Bannermation in the event of non-delivery of any third party product or service. Bannermation will not be held liable in the event of this, except where their authorised agents are concerned during the course of carrying our the company’s Services.
2.6 The website quotes prices that are inclusive of a maximum of one design and one set of amendments. Should the need for further changes arise, the fee for these will be £50 per hour. The minimum payable in this instance is for 30 minutes work, i.e. £25.
3.1 These terms come into effect whenever any of the following arise (in any order, as and when they may arise): Bannermation receives a request from the Client to begin working on a Project, upon receipt of a Client’s Purchase Order, upon providing the Client with a Service Order or from the time when a Client first receives a Service.
3.2 The duration of these terms is 90 days from the time the Client accepts a Product or Service from Bannermation.
3.3 These terms may be immediately terminated by either Party with notice given if any of the following situations arise;
3.3.1 Either Party fails to adhere to any part of these terms and such an action cannot be resolved or, if it can be resolved, it carries on for 30 days after written notice has been served on the Party in breach, stating that the breach must be resolved; or
3.3.2 an instruction is given, or a resolution is made, to wind up the other Party; or
3.3.3 the other Party or all or any of its assets go into provisional liquidation, administration, receivership, or if debts incurred by the other Party cannot be paid as per Section 123 of the Insolvency Act 1986, or if the other Party decides to embark upon a voluntary arrangement as per Section 1 of the Insolvency Act 1986.
3.4 These terms may be revoked by either Party as long as 30 days’ notice is given to the other side and that this time period has expired.
3.5 Should any agreement be revoked for any reason, the Client is bound to pay Bannermation all outstanding amounts in respect of Services delivered before the agreement was terminated.
4.1 Any passwords revealed to the other Party as part of any Service must be securely stored and not revealed to any third parties.
4.2 Any data supplied by one Party to the other must be thoroughly checked for viruses.
4.3 In accordance with the Data Protection Act 1998, each Party must comply with the obligations placed upon them. This extends to any similar relevance to the Services.
5.1 Bannermation will assign all Intellectual Property Rights for all Project Deliverables to the Client once that Project has been completed, upon which payment will be due for any and all amounts in respect of the Project. Bannermation will ensure any necessary agreements are put in place to effect assignment of payments and this will be carried out at the expense of the Client.
5.2 Should any Deliverables involve Retained Copyright, Bannermation will allow the Client to use such Retained Copyright. This will be on a worldwide, continuous, royalty-free, non-exclusive, non-transferable basis and only in connection with that Project.
5.3 Nothing in this clause allows the Client any right to ownership or claim to any Third Party Copyright outside of the scope of these terms. The Client is responsible for taking up and financing any appropriate licences with any Third Party Copyright holders.
5.4 In the event of any damages, liabilities, expenses and costs incurred or sustained by Bannermation, the Client must agree to indemnify Bannermation against these. This includes any costs incurred from defending a lawsuit that might arise through using a Deliverable in data or material form provided by the Client or on their behalf, including acts and/or omissions by the Client or their agents or employees. The Client must be responsible for defending any action of this type including all negotiations to settle it or reach a compromise. Bannermation undertakes to reasonably co-operate with the Client when defending such action, including reaching a settlement or compromise. This will be at the Client’s expense.
5.5 In the event of any damages, liabilities, expenses and costs incurred or sustained by the Client, Bannermation must agree to indemnify the Client against these. This includes any costs incurred from defending a lawsuit that might arise through using a Deliverable in data or material form provided by Bannermation or on their behalf, including acts and/or omissions by Bannermation or their agents or employees. Bannermation must be responsible for defending any action of this type including all negotiations to settle it or reach a compromise. The Client must undertake to reasonably co-operate with Bannermation when defending such action, including reaching a settlement or compromise. This will be at Bannermation’s expense.
5.6 Bannermation must be granted any licences and consents by the Client with no charge made in respect of using its Intellectual Property Rights as required to fulfill these terms.
5.7 The content of Clause 5 will still apply should these terms expire or terminate.
6.1 Neither Bannermation nor the Client shall be liable for any indirect or consequential loss, profit or revenue loss or loss of goodwill that might arise due to management time wasted, anticipated savings that are not made, or third party liability that may arise in any way from these terms or otherwise, irrespective of whether the Parties discussed these losses before the contract or for profit account, expenses or costs or expenses resulting from such losses or damages.
6.2 In respect of its obligations contained within these terms, Bannermation will not be liable for any failures resulting directly or indirectly from failures or interruptions to services or software that fall within the responsibility of third parties.
6.3 The clauses contained within these terms will not apply in respect of restricting liability for personal injury or death arising due to either Party’s negligence or that of any agents they appoint.
6.4 Irrespective of how many claims are made and their basis, subject to these terms the maximum aggregate liability from one Party to another relating to Services or otherwise, including if such claims are part of the contract or tort, will be the total amount of the Prices.
7.1 In respect of the Deliverables, if the client does not raise any issues with their conformity Specification within 14 days following Bannermation’s delivery (“Acceptance”), the Client is deemed to have accepted these.
7.2 Bannermation guarantees that Deliverables will materially conform to their Specification for 90 days after their Acceptance. This warranty will lapse with immediate effect in the event of the modification of any Deliverable by any entity who is not Bannermation.
8.1 Bannermation will not release or disclose Client information provided with the Client’s agreement unless this information, aside from a disclosure breach, is to be part of a Deliverable or is in the public domain at the time.
8.2 Both Parties undertake not to be involved in any kind of publicity or make any announcements in respect of a Project unless the other Party’s consent has been received in writing. Neither party shall unreasonably withhold such consent.
9.1 The whole agreement between both Parties is made up by these terms. Neither Party is relieved by anything in this clause in respect of their liability for fraudulent misrepresentations. In the event of any negligent or innocent misrepresentation, neither Party shall be entitled to any remedy.
9.2 Unless both Parties agree in writing, no change, modification or alteration to these terms shall be valid.
9.3 In the event of any part of these terms becoming void for any reason, it shall be considered to be deleted but the provisions that remain shall continue to be valid in full.
10.1 None of the rights, obligations or interests contained in these terms may be assigned or otherwise transferred unless the other Party has given their prior consent in writing to the other, save that either Party’s rights may be transferred hereunder to any of its Affiliates.
11.1 When dispatched to the last known address of the Party concerned by first class mail or by e-mail, notice will be considered as served. When sent by first class mail, notices will be considered as given 7 days after they have been sent. Notices that are e-mailed will be considered as delivered on the same day they are sent.
12.1 Should any failures in performance or delays occur, neither Party shall be liable for any loss suffered by the other or be held in default hereunder for events arising from causes or acts or causes outside its control within reasonable limits. This extends to regulations or acts of any multi-national or governmental authority, acts of God, accidents, national emergency or war, riots, fire, lock-outs, strikes, problems with labour, sickness, transportation difficulties, or when import and export licences cannot be obtained.
12.2 Each Party shall make every reasonable attempt to find solutions to such situations but gives their consent to the termination of these terms by the unaffected Party should the situation persist for more than 30 days.
13.1 In the event of any Party’s forbearance of delay in enforcing these terms or any of its rights contained within, this will not be deemed as the waiving of such provisions including the rights to enforce them.
14.1 In the event of a dispute arising from these terms, both parties must consent to attempt mediation to resolve the issue dispute. This will be carried out according to the CEDR (Centre for Effective Dispute Resolution) Model Mediation Procedure. A mediator will be named by CEDR within 14 days of the dispute being noted, unless the Parties agree otherwise.
15.1 For reasons of convenience, these terms contain titles to clauses but these shall not be construed as forming part of these terms nor can they be used as an interpretation.
16.1 Soliciting, employing or making any offer of employment to the other Party’s employees or agents while these terms are in force, or within 12 months of them ending, shall not be carried out unless consent has been received in writing by the other Party.
16.2 Should this clause be breached, the Party in default must pay to the other an amount equivalent to 6 months’ gross salary including any benefits in kind, unless the Parties agree to a lower sum. This amount must be paid as liquidated damages and the Parties must agree that it represents fair compensation should the event arise.
17.1 The laws of England and Wales govern these terms and the Parties must agree to be bound by the exclusive jurisdiction of the English and Welsh Courts.
