The following definitions and rules of interpretation apply in these Conditions
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Client for the supply of the Services in accordance with clause 5 and set out in Schedule 1.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.
Contract: the contract between the Supplier and the Client for the supply of Services in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Client: the person or firm who purchases Services from the Supplier.
Client Default: has the meaning set out in clause 4.2.
Deliverables: the deliverables set out in the Order produced by the Supplier for the Client.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks, business names and domain names, rights in get-up goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Client's order for Services as set out in Schedule 1.
Services: the services and project, including the Deliverables, supplied by the Supplier to the Client as set out in the Proposal.
Proposal: the description or specification of the Services provided by the Supplier to the Client in accordance with Schedule 1.
Supplier: ACCENTUATE LTD registered in England and Wales with company number 12588396.
Supplier Materials: has the meaning set out in clause 4.1(h).
A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
Any words following the terms including include, in particular, for example, or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Basis of contract
2.1. The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2. The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3. Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations, 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.
2.4. These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5. Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.
3. Supply of Services
3.1. The Supplier shall supply the Services to the Client in accordance with the Proposal in all material respects.
3.2. The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Order but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier reserves the right to amend the Proposal if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Client in any such event.
3.4. The Supplier warrants to the Client that the Services will be provided using reasonable care and skill.
3.5. The location for the Services is as set out in Schedule 1.
3.6. The Client acknowledges that any results, whether on marketing, sales or another basis cannot be guaranteed from the Supplier’s Services.
3.7. The Supplier will use its reasonable endeavours to supply the Services and shall not be responsible for any failure to provide Services or any unavailability. The Supplier cannot guarantee that access to any Services will be uninterrupted, secure or error-free. The Supplier will not be responsible for any events, which may result in data loss.
3.8. The Supplier will use reasonable endeavours to notify the Client in advance of scheduled maintenance but the Client acknowledges that it may receive no advance notification for downtime caused by a force majeure event or for other emergency maintenance.
3.9. The Supplier makes no warranty against electronic virus, worms or any other fault or defect or problems which may occur, or as a result thereof, including data, documents or any e-mail which the Supplier sends to the Client.
3.10. The Supplier reserves the right to suspend the Services and to substitute any individual person within the Supplier, where necessary.
3.11. If the Supplier has specifically agreed on any Proposal to supply any report or documentation, this will be in any format and will contain the information that the Supplier, in the Supplier’s absolute discretion, deems appropriate.
3.12. Any project will have up to 3 project revisions and the Client must communicate clearly, providing concise and numbered amendments for the Supplier. Amendments must not be open or left to interpretation. Any further amendments shall incur an additional fee.
4. Client's obligations
4.1. The Client shall:
(a) ensure that the terms of the Order and any information it provides in the Proposal are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) 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 complete and accurate in all material respects;
(d) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(e) comply with any additional obligations as set out in the Proposal.
4.2. The Supplier reserves the right to include, without any notice or fee due to the Client, details of any Services provided, including any images to show the nature of the work, for the Supplier’s use either on its website or within any printed portfolio, as an example of its work, together with, as the Supplier requires, a link back to its site.
4.3. The Supplier reserves the right to include reference to either an individual or the Client’s organisation, or both.
If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays the Supplier's performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Client 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
(c) the Client shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Client Default.
4.4. The Client shall disclose to the Supplier all information which is necessary for the satisfactory running and completion of the Services or which, in the reasonable opinion of the Supplier, is relevant to the Contract.
4.5. All content required from the Client in order to complete the Services must be supplied upfront in full unless the design process is included as part of the Proposal.
4.6. The Client agrees that they will solely be responsible for their use of any Services provided. Including security of passwords, if applicable. The Services are provided to the Client only.
4.7. The Client is responsible for anything which they submit to the Supplier (including, but not limited to data, information, materials or documents or anything else whatsoever). The Client shall retain copies/back-up of anything submitted to the Supplier.
4.8. The Supplier has the right to use any work created on behalf of the Client as part of a case study or as part of any marketing materials.
4.9. If the Client does not collect anything they supply to the Supplier, including any data, and information after 3 months from the date the Supplier completes the work, then the Supplier reserves the right to dispose of such items.
4.10. The Client shall notify the Supplier straight away upon becoming aware of any matters, facts or circumstances directly or indirectly affecting the project which appear inconsistent in any material respect alongside information already provided, such that the information previously supplied becomes misleading or inaccurate.
5. Charges and payment
5.1. The Client will be charged in accordance with the Proposal in Schedule 1. The Supplier will charge for all time spent, whether attending the Client’s premises or elsewhere. Where the allocated time for the Proposal is exceeded, additional hours or days will be charged as set out in the Proposal.
5.2. If the Supplier does not receive payment within 7 Business Days of the date of the invoice, then the Supplier will invoice a one-off late payment charge which will be 10% of the invoice total. If the invoice or any part of it remains unpaid after 60 Business days the Supplier reserves the right to charge the Client interest at the rate of 4% of the outstanding amount for every 5 Business days until the Supplier has received full cleared payment. The Supplier also reserves the right to charge the Client for all expenses and costs in dealing with any problems related with the Client’s payment or recovering any monies due.
5.3. Late or non-payment automatically means that all work stops until such time that full payment (including any accrued or extra payment) is made. No refunds will be made, and no work or product of Services will be released until full cleared payment has been received by the Supplier. The Client always remains liable for payment of Services ordered. Accentuate Ltd also reserve the right to cancel any future Services which have been ordered.
5.4. Any pricing adjustments will be notified to the Client at least 28 days’ notice in advance before applying the new rates.
5.5. All direct costs and expenses incurred by the Supplier in connection with the provision of the Services will be chargeable and are payable by the Client. The Supplier will obtain agreement from the Client before such expenditure is incurred.
5.6. If during the course of the project a need for ancillary specialist Services not specified in the Proposal is identified, the Supplier will obtain agreement from the Client for their use before any expenditure is incurred.
5.7. The Client shall pay each invoice submitted by the Supplier as set out in Schedule 1 and:
(a) within  days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
5.8. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5.9. The Charges will be fully detailed within the Supplier’s Proposal. All prices are in GBP Sterling unless otherwise stated.
5.10. The Services shall be invoiced for payment either upfront or on the invoice dates agreed and set out in the Order.
5.11. All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Client, the Client 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.
6. Intellectual property rights
6.1. The Client shall own the Deliverables of the project, which shall not include any proprietary products or methods which the Supplier may use in the course of the Project. The Supplier may retain copies for quality assurance purposes. Subject to the Supplier’s obligations of confidentiality, both parties to the Contract shall be free to apply the concepts, techniques, know-how used and developed on the project. The Supplier shall continue to be at liberty to perform similar Services for other clients using the Supplier’s general knowledge, skills, experience and personnel.
6.2. The Client will only own the deliverables of the project once the cleared payment of all amounts due to the Supplier has been received from the Client. Until the full payment has been paid, the Supplier will have a lien over any item, data or materials.
7. Data protection
7.1. When supplying the Services to the Client, the Supplier may gain access to and/or acquire the ability to transfer, store or process personal data of employees of the Client.
7.2. The parties agree that where such processing of personal data takes place, the Client shall be the ‘data controller’ and the Supplier shall be the ‘data processor’ as defined in the General Data Protection Regulation (GDPR) as may be amended, extended and/or re-enacted from time to time.
7.3. For the avoidance of doubt, ‘Personal data’, ‘processing’, ‘data controller’, ‘data subject’ shall have the same meaning as in GDPR.
7.4. The Supplier shall only process personal data to the extent reasonably required to enable it to supply the Services as mentioned in these terms and conditions or as requested by and agreed with the Client, shall not retain any personal data longer than necessary for the processing and refrain from processing any personal data for its own or for any third party’s purposes.
7.5. The Supplier shall not disclose Personal Data to any third parties other than employees, directors, agents, sub-contractors or advisers, on a strict ‘need-to-know’ basis and only under the same (or more extensive) conditions as set out in these terms and conditions or to the extent required by the applicable legislation and/or regulations.
7.6. The Supplier shall implement and maintain technical and organisational security measures required to protect personal data processed by the Supplier on behalf of the Client.
7.7. Further information about the Supplier’s approach to data protection are specified in its data protection policy, which can be found here. For any enquiries or complaints regarding data privacy you can email [email protected]
8. Limitation of liability
8.1. The Supplier shall not be liable to the Client in contract, tort (including without limitation negligence) and/or breach of statutory duty for any:
(a) loss or damage which the Client may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of this Contract by the Supplier, its servants or agents, in a sum which is greater than the total Charges payable in connection with this Contract.
(b) loss of profits and/or loss of production or any indirect or consequential (including economic) loss of any kind which the Client may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of this Contract by the Supplier, its servants or agents.
(c) loss of profits and/or loss of production or any indirect or consequential (including economic) loss of any kind which the Client may suffer by reasons outside the direct control of the Supplier, its servants or agents.
8.2. Nothing in this Contract shall operate so as to exclude:
(a) either party’s non-excludable liability in respect of death or personal injury caused by its negligence or the negligence of its servants or agents;
(b) The application of Section 12 of the Sale of Goods Act 1979; or
(c) Liability for fraudulent misrepresentation.
8.3. The Supplier holds a current Certificate of Professional Liability Insurance to cover any civil liabilities arising from its professional activities.
9.1. Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 1 months' written notice.
9.2. The Supplier may suspend the project if, in the reasonable opinion of the Supplier, material circumstances adversely affect the performance of the Supplier’s obligation under the Contract, or where the Supplier reasonably determines that there has been a material non-disclosure of information by the Client or material changes in circumstances which significantly alter the scope and/or nature of the project.
9.3. The Supplier may, by giving notice in writing to the Client, terminate the project forthwith if:
9.4. The Client commits a breach of the Contract and fails to remedy such a breach within 7 days of being notified in writing by the Supplier; or
9.5. The Client compounds with or negotiates for any composition or compromise with its creditors or is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986.
9.6. If the contract is terminated:
9.7. Each party to the contract shall on-demand return to the other party, all property belonging to the other party in its possession at the time of termination; and
9.8. The Client shall pay forthwith, on-demand by the Supplier, all Charges and expenses in respect of all Services performed by the Supplier under or in connection with the Contract up to the date of termination, the date of termination shall include the notice period, together with all reasonable fees and expenses incurred by the Supplier in connection with and in consequence of the termination of the contract.
10.1. Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
10.2. Assignment and other dealings
(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
(a) Each party undertakes that it shall not at any time, and for a period of 2 years after termination, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.3(b).
(b) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 11.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
10.4. Entire agreement
The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
The Supplier shall reserve the right to vary these Conditions at any time, giving reasonable notice to the Client.
A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this Contract deleted under this clause 11.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
Notices for either party must be in writing to the address which appears on the Supplier’s website or in writing via email. If no response has been received to acknowledge receipt of the email notice, a follow-up phone call must be made within 7 Business Days. Notices are deemed to have been received on the 7th day after posting using Royal Mail 1st class service, provided that a duly stamped proof of posting is obtained.
10.9. Third party rights
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
The Supplier shall use third parties under or in connection with this Contract.
10.10. Governing law
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.