Esther Stanhope Limited – Terms and Conditions
YOUR ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF clause 8 (Limitation of Liability).
1. Interpretation
1.1 Definitions:
Additional Fees: the amount payable by You to Us for the Additional Services.
Additional Services: any additional services which are not set out in the Proposal and which are otherwise agreed between You and Us.
Basic Fees: the fees payable by You to Us for the Basic Services as set out in the Proposal.
Basic Services: the services as set out in the Proposal.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Conditions: these terms and conditions as amended from time to time.
Contract: the contract between Us and You for the supply of Services in accordance with these Conditions.
Deliverables: the deliverables set out in the Proposal, or in relation to the Additional Services which are agreed by both of us, and in either case which are produced by Us for You.
Fees: the fees payable by You for the Services, which include the Basic Fees and any Additional Fees.
Order: Your order for Services, whether written or oral.
Project: the project set out in the Proposal.
Proposal: the document containing details of the Project and the description and costs of the Services to be provided by Us to You.
Services: the Basic Services and any Additional Services, including the Deliverables, supplied by Us to You as set out in the Proposal or as otherwise agreed between Us and You.
We/Us/Our: Esther Stanhope Limited whose registered office is at Langley House, Park Road, East Finchley, London N2 8EY, Company Number: 08952262, a company incorporated in England & Wales.
You/Your: the person or firm who purchases Services from Us.
Your Default: has the meaning set out in clause 5.2.
Your Materials: means any documents or other materials and any other data or information provided by You to Us which are required for the supply of the Services.
1.2 Interpretation:
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted.
(b) 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.
(c) A reference to writing or written includes email.
2. Basis of contract
2.1 The Order constitutes an offer by You to purchase Services in accordance with these Conditions.
2.2 The Order will only be deemed to be accepted when We issue You with written acceptance of the Order on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by Us, and any descriptions or illustrations contained on Our website, 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.
2.5 Any Proposal submitted by Us will not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. Changes and Adjustments to Fees
3.1 If either of us wishes to change the scope of the Proposal, including to add any Additional Services, we agree to work together to identify and agree such changes and the impact which the proposed changes will have on:
(a) the Services;
(b) the Fees (and any Additional Fees payable);
(c) the timetable for the supply of the Services; and
(d) any of these terms.
3.2 The Fees shall be adjusted if the performance of the Services is materially delayed or disrupted due to a change in the scope, size, complexity or duration of the Project, provided that We will not be entitled to any adjustment of the Fees where delay or disruption arises from Our default or negligence.
3.3 We will notify You of Our intention to adjust the Fees as soon as reasonably practicable after We become aware of any material delay or disruption to the Services. Our notice shall include a written estimate of the proposed adjustment to the Fees.
4. our obligations
4.1 We will:
(a) supply the Services to You in accordance with the Proposal, or as otherwise agreed by You and Us in the case of a change to the Services under clause 3, in all material respects;
(b) comply with all relevant statutes, laws, regulations and relevant codes of practice from time to time in force; and
(c) use all reasonable endeavours to meet any performance dates specified in the Proposal or as otherwise agreed by Us and You, but any such dates will be estimates only and time will not be of the essence for performance of the Services.
4.2 We warrant that the Services will be provided using reasonable care and skill.
5. YOUR obligations
5.1 You will:
(a) ensure that the terms of the Order and any information You provide in the Proposal are complete and accurate;
(b) co-operate with Us in all matters relating to the Services;
(c) provide suitable premises and facilities as may be required for the Services and allow Us access to such premises;
(d) provide Us with Your Materials and such information and materials as We may reasonably require in order to supply the Services, and ensure that Your Materials and such information are complete and accurate in all material respects;
(e) obtain before the date on which the Services are to start and maintain all necessary licences, permissions and consents which may be required for the Services;
(f) comply with all applicable laws, including health and safety laws; and
(g) comply with any additional obligations as set out in the Proposal or which are otherwise agreed by both of us.
5.2 If Our performance of any of Our obligations under the Contract is prevented or delayed by any act or omission by You or any failure by You to perform any relevant obligation (Your Default):
(a) We may, without affecting any other rights or remedies available to Us, suspend performance of the Services until You remedy Your Default, and We may rely on Your Default to relieve Us from the performance of any of Our obligations to the extent that Your Default prevents or delays Our performance of any of Our obligations;
(b) We will not be liable for any costs or losses sustained or incurred by You arising directly or indirectly from Our failure or delay to perform any of Our obligations as set out in this clause 5.2; and
(c) You will reimburse Us on written demand for any costs or losses sustained or incurred by Us arising directly or indirectly from Your Default.
6. intellectual property rights
6.1 Unless otherwise agreed in writing between Us and You, we own all intellectual property rights in or arising out of or in connection with the Services, including in the Deliverables (other than intellectual property rights in Your Materials).
6.2 We grant to You, a fully paid up, worldwide, irrevocable, non-exclusive, royalty-free licence to copy and use the Deliverables (excluding Your Materials) for the purpose of receiving and using the Services and the Deliverables internally within your business only.
6.3 You shall not sub-license, assign or otherwise transfer the rights granted in clause 6.2.
6.4 If you wish to record any part of the Services, then you may only do so with Our prior written consent and We reserve the right to charge Additional Fees for any such recording. Any such recording will form part of the Deliverables and clauses 6.1, 6.2 and 6.3 shall apply accordingly.
6.5 We will not be liable for use of the Deliverables for any purpose other than that for which they were prepared and/or provided.
6.6 We may use details of the Project for the purposes of Our marketing, including on Our website.
7. Fees and Payment
7.1 You shall pay:
(a) the Basic Fees;
(b) any Additional Fees; and
(c) any expenses reasonably incurred by Us in connection with the Services (including but not limited to the costs of hotel, subsistence, travelling and associated expenses) and the costs of any materials or services provided by third parties required by Us for the supply of the Services.
7.2 Any amount expressed as payable to Us under the Contract is exclusive of VAT unless stated otherwise. You will pay Us any VAT properly chargeable on the Services at the same time as payment is due for the supply of the Services.
7.3 The Fees shall be calculated and paid in instalments in accordance with the Proposal. If not set out in the Proposal, the Fees shall be divided in half and 50% shall be paid 14 days prior to the start of the Project and the remaining 50% shall be paid on completion of the Project.
7.4 Unless otherwise agreed by Us and You, if any Additional Fees are payable under the Contract, the Additional Fees shall be divided in half and 50% shall be paid 14 days prior to the start of the Additional Services and the remaining 50% shall be paid on completion of the Additional Services.
7.5 We will submit to You an invoice for each instalment of the Fees and expenses. The invoice will specify the sum in respect of the instalment of the Fees, and the basis on which that sum is calculated.
7.6 You will pay each invoice submitted to you by Us in full, and in cleared funds, within 14 days of the date of the invoice and time for payment shall be the essence of the Contract.
7.7 If You fail to pay an amount due to Us by the due date for payment then You will pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank's base rate from time to time. Such interest will accrue on a daily basis from the due date for payment until actual payment of the overdue amount, whether before or after judgment. You will pay interest together with the overdue amount.
7.8 All amounts due from You to Us 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). We may, without prejudice to any other rights or remedies We may have, set off any liability You have to Us against any liability of We have to You.
8. Limitation of liability: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
8.1 This clause 8 shall not exclude or limit Our liability for:
(a) death or personal injury caused by Our negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability which cannot be limited or excluded by applicable law.
8.2 Subject to clause 8.1, and without affecting any other limitation in this agreement, Our total liability to You, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the total Fees paid under the Contract.
8.3 Subject to clause 8.1, We will under no circumstances whatsoever be liable to You, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of sales or business, loss of or damage to goodwill or any indirect or consequential loss arising under or in connection with the Contract.
8.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are to the fullest extent permitted by law, excluded from the Contract.
8.5 This clause 8 shall survive termination of the Contract.
9. Termination
9.1 Without affecting any other rights or remedies available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.2 Without affecting any other rights or remedies available to Us, We may terminate the Contract with immediate effect by giving written notice to You if You fail to pay any amount due under the Contract on the due date for payment.
9.3 Without affecting any other rights or remedies available to Us, We may suspend the supply of the Services under the Contract or any other contract between You and Us if You fail to pay any amount due under the Contract on the due date for payment, if You become subject to any of the events in clause 9.1(b) to clause 9.1(d), or if We reasonably believe that You are about to become subject to them.
10. Consequences of termination
10.1 On termination of the Contract for any reason:
(a) You will immediately pay to Us all of Our outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, We shall submit an invoice, which will be payable by You immediately; and
(b) You will return to Us the Deliverables and any other equipment or materials which belong to Us. Until they have been returned to Us, You shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.2 The accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected by the termination or expiry of the Contract, 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.
10.3 Clauses which expressly or by implication come into effect or which survive termination shall continue in full force and effect.
11. General
11.1 Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.2 Assignment and other dealings. You shall not, without Our prior written consent, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
11.3 Confidentiality.
(a) Subject to clause 6.6, each party undertakes that it shall not at any time 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) Subject to clause 6.6, each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives, 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, 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.