Terms & Conditions
These are the terms and conditions of Milton Bayer Ltd
in relation to the provision of all services. These terms shall be deemed accepted by our customers upon their placing an order with us:
In this document the following words shall have the following meanings:
1.1 “Agreement” means these Terms and Conditions together with the terms
of any applicable Development Proposal and Cost Documents;
1.2 “Customer” means the organisation or person who purchases services from Milton Bayer;
1.3 “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property wherever in the world enforceable;
1.4 “Development Proposal and Cost Documents” means a statement of work, quotation or other similar document describing the services to be provided by Milton Bayer constituting or not constituting an order.
1.5 “Supplier” means
Milton Bayer Limited,
21-27 Wootton Hope Drive
2.1 These Terms and Conditions shall apply to all contracts for the supply
of services by Milton Bayer to the Customer.
2.2 Before the commencement of the services Milton Bayer shall submit to the Customer a Development Proposal and Cost Documents which shall specify the services to be performed and the fees payable. The Customer shall notify Milton Bayer immediately if the Customer does not agree with the contents of the Development Proposal and Cost Documents. All Development Proposal and Cost Documents shall be subject to these Terms and Conditions.
2.3 Milton Bayer shall use all reasonable endeavours to complete the services within estimated time frames but time shall not be of the essence in the performance of any services.
3. Fees & Payment
3.1 The fees for the performance of the services are as set out in the Development Proposal and Cost Documents. Milton Bayer shall invoice the Customer for the services as detailed therein.
3.2 Invoiced amounts shall be due and payable within 30 days of receipt of invoice. Milton Bayer shall be entitled to charge interest daily on overdue invoices from the date when payment becomes due from until the date of payment at a rate of 2% per annum above the base rate of the Bank of England. In the event that the Customer’s procedures require that an invoice be submitted against a purchase order to payment, the Customer shall be responsible for issuing such purchase order before the services are rendered.
4. Customer's Obligations
4.1 To enable Milton Bayer to perform its obligations under this Agreement the Customer shall:
4.1.1 - co-operate with Milton Bayer;
4.1.2 - provide Milton Bayer with any information reasonably required by Milton Bayer;
4.1.3 - obtain all necessary permissions and consents which may be required before the commencement of the services; and
4.1.4 - comply with such other requirements as may be set out in the Development Proposal and Cost Documents or otherwise agreed between the parties.
4.2 The Customer shall be liable to compensate Milton Bayer for any expenses incurred by Milton Bayer as a result of the Customer’s failure to comply with Clause 4.1.
4.3 Without prejudice to any other rights to which Milton Bayer may be entitled, in the event that the Customer unlawfully terminates or cancels the services agreed to in the Development Proposal and Cost Documents, the Customer shall be required to pay to Milton Bayer as agreed damages and not as a penalty the full amount as set out in the Development Proposal and Cost Documents, and the Customer agrees this is a genuine pre-estimate of Milton Bayer’s losses in such a case. For the avoidance of doubt, the Customer’s failure to comply with any obligations under Clause 4.1 shall be deemed to be a cancellation of the services and subject to the payment of the damages set out in this Clause.
4.4 In the event that the Customer or any third party, not being a sub-contractor of Milton Bayer, shall omit or commit anything which prevents or delays Milton Bayer from undertaking or complying with any of its obligations under this Agreement, then Milton Bayer shall notify the Customer as soon as possible and:
4.4.1 - Milton Bayer shall have no liability in respect of any delay to the completion of any project;
4.4.2 - if applicable, the timetable for the project will be modified accordingly;
4.4.3 - Milton Bayer shall notify the Customer at the same time if it intends to make any claim for additional costs.
5. Alterations To The Development Proposal And Cost Specification Documents
5.1 The parties may at any time mutually agree upon and execute new Development Proposal and Cost Documents. Any alterations in the scope of services to be provided under this Agreement shall be set out in the Development Proposal and Cost Documents, which shall reflect the changed services and fees and any other terms agreed between the parties.
5.2 The Customer may at any time request alterations to the Development Proposal and Cost Documents by notice in writing to Milton Bayer. On receipt of the request for alterations Milton Bayer shall, within 5 working days or such other period as may be agreed between the parties, advise the Customer by notice in writing of the effect of such alterations, if any, on the fees and any other terms already agreed between the parties.
5.3 Where Milton Bayer gives written notice to the Customer agreeing to perform any alterations on terms different to those already agreed between the parties, the Customer shall, within 5 working days of receipt of such notice or such other period as may be agreed between the parties, advise Milton Bayer by notice in writing whether or not it wishes the alterations to proceed.
5.4 Where Milton Bayer gives written notice to the Customer agreeing to perform alterations on terms different to those already agreed between the parties, and the Customer confirms in writing that it wishes the alterations to proceed on those terms, the Development Proposal and Cost Documents shall be amended to reflect such alterations and thereafter Milton Bayer shall perform this Agreement upon the basis of such amended terms.
6.1 Milton Bayer warrants that the services performed under this Agreement shall be performed using reasonable skill and care, and of a quality conforming to generally accepted industry standards and practices.
6.2 Without prejudice to Clause 6.1, and except as expressly stated in this Agreement, all warranties whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the services to be provided by Milton Bayer.
The Customer shall indemnify Milton Bayer against all claims, costs and expenses which Milton Bayer may incur and which arise, directly or indirectly, from the Customer’s breach of any of its obligations under this Agreement, including any claims brought against Milton Bayer alleging that any services provided by Milton Bayer in accordance with the Development Proposal and Cost Documents infringes a patent, copyright or trade secret or other similar right of a third party.
8. Limitation of Liability
8.1 Except in respect of death or personal injury due to negligence for which no limit applies, the entire liability of Milton Bayer to the Customer in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the fees paid by the Customer to which the claim relates.
8.2 In no event shall Milton Bayer be liable to the Customer for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or Milton Bayer had been made aware of the possibility of the Customer incurring such a loss.
8.3 Nothing in these Terms and Conditions shall exclude or limit Milton Bayer’s liability for death or personal injury resulting from Milton Bayer’s negligence or that of its employees, agents or sub-contractors.
9. Termination of Order
Either party may terminate order agreements forthwith by notice in writing to the other if:
9.1 the other party commits a material breach of these terms and, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice from the other party to do so;
9.2 the other party commits a material breach of these terms which cannot be remedied under any circumstances;
9.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
9.4 the other party ceases to carry on its business or substantially the whole of its business; or
9.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
10. Intellectual Property Rights
All Intellectual Property Rights produced from or arising as a result of the order will vest in Milton Bayer until all monies specified in the Cost document are received by Milton Bayer. Milton Bayer will then assign IPRs to the customer, and will execute any appropriate documents required to complete such assignment. IPRs are restricted to the idea, concept, final compiled code (.flv, .app, .jpg, .mpg1-4, .wav, .aiff, .exe) and artwork that constitute the final deliverable item described in any Development proposal and or Cost document. All other development code, programming resources, back office integration software, visual layered files, animation source files, video rushes, audio clips and any other printed, hand drawn or electronic material cannot be included in IPR transfers unless it was provided by the client to Milton Bayer for the purpose of completing the order.
The Client retains the copyright to data, files and graphic logos provided by
the Client, and grants Milton Bayer the rights to publish and use such material. The Client must obtain permission and rights to use any information or files that are copyrighted by a third party. The Client is further responsible for granting Milton Bayer permission and rights for use of the same and agrees to indemnify and hold harmless Milton Bayer from any and all claims resulting from the Client’s negligence or inability to obtain proper copyright permissions. A contract for Web site design and/or placement shall be regarded as a guarantee by the Client to Milton Bayer that all such permissions and authorities have
been obtained. Evidence of permissions and authorities may be requested.
Where project contracts are part invoiced they will be divisible. Each delivery, be that physically or electronically, made hereunder shall be deemed to arise from a separate contract and shall be invoiced separately; any invoice for a delivery shall be payable in full in accordance with the terms of payment provided for within our standard terms and conditions herein, without reference to and notwithstanding any defect of default in delivery of any other stage or instalment of a project
12. Force Majeure
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.
13. Independent Contractors
Milton Bayer and the Customer are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. Milton Bayer may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Customer and such engagement shall not relieve Milton Bayer of its obligations under this Agreement.
The Customer shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of Milton Bayer.
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Development Proposal and Cost Documents or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
18. No Third Parties
Nothing in these terms is intended to, nor shall it confer any rights on a third party.
19. Governing Law And Jurisdiction
These terms shall be governed by and construed in accordance with the law of England and Wales.
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