Terms and Conditions of Business
1. Definitions and interpretation
1.1 In these Conditions:-
"Absolute" means Absolute Design Associates Limited;
"Brief" means the written brief (if any) for the Products and/or Services referred to or contained in the Quotation as the such brief may be amended from time to time with the written agreement of Absolute and the Buyer;
"Buyer" means the person who accepts the Quotation;
"Conditions" means the conditions set out in this document and (unless the context otherwise requires) includes any special conditions appearing on the Quotation;
"Contract" means the contract for the supply by Absolute to the Buyer of Products and/or Services;
"Products" means the artwork, designs or other products (including any instalment of any products) which Absolute is to supply to the Buyer in accordance with these Conditions;
"Quotation" means the written quotation provided by Absolute for the supply of Products and/or Services;
"Services" means any consultancy or other services which Absolute is to provide to the Buyer in accordance with these Conditions.
1.2 Reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time. The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. The supply
2.1 Absolute supplies and the Buyer purchases the Products and/or Services in accordance with the Quotation once accepted by the Buyer subject to these Conditions, which shall govern the Contract to the exclusion of any other terms. The provisions of the Contracts (Rights of Third Parties) Act
1999 are expressly excluded from the Contract.
2.2 No variation to these Conditions shall be binding unless approved in writing by a director of Absolute.
2.3 Any advice or recommendation given by Absolute or its employees or agents to the Buyer as to the use of any Products not confirmed in writing by Absolute is acted upon at the Buyer's own risk, and accordingly Absolute is not liable for any such advice or recommendation not so confirmed.
2.4 Any error or omission in any sales literature, quotation, price list, invoice or other document or information issued by Absolute is subject to correction without liability to Absolute.
2.5 No right or licence is granted to the Buyer under any intellectual property right in the Products and/or Services or otherwise created in connection with the Contract ('IPR') save for the right of the Buyer to use the Products for the purposes specified in the Quotation. Accordingly all IPR shall remain the exclusive property of Absolute and the Buyer agrees to acknowledge the ownership of Absolute in a form approved by Absolute whenever the Buyer reproduces such IPR.
3. Quotations and briefs
3.1 The Buyer is responsible to Absolute for ensuring the accuracy of any information referred to in the Quotation (including any Brief) submitted by the Buyer, and for giving Absolute any necessary information relating to the Products and/or Services within a sufficient time to enable Absolute to perform the Contract in accordance with its terms.
3.2 The quantity, quality and description of the Products and/or Services is set out in the Quotation.
3.3 The Buyer is to indemnify Absolute for all loss, damages, costs and expenses incurred by Absolute in connection with any claim for infringement of any intellectual property rights of any other person resulting from Absolute's use of the Brief.
3.4 Absolute may make any changes in the Brief required to conform with any applicable statutory or EU requirements or, in the case of any products, which do not materially affect their quality or performance.
3.5 The Quotation once accepted by the Buyer may not be cancelled by it except with Absolute's writte agreement and on terms that the Buyer is to indemnify Absolute against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Absolute as a result of cancellation.
4.1 The price of the Products and/or Services shall be as set out on the Quotation. Subject to clause 4.2, all prices quoted are valid for one month only or such other time as specified in the Quotation or until earlier acceptance by the Buyer, after which time they may be altered by Absolute without notice.
4.2 Absolute may by giving notice to the Buyer at any time before delivery, increase the price of the Products and/or Services to reflect any increase in the cost to Absolute due to: (a) any factor beyond the control of Absolute (including, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of production), (b) any change in delivery dates or performance, quantities or specifications for the Products and/or Services requested by the Buyer, or (c) any delay caused by any instructions of the Buyer or failure of the Buyer to give Absolute adequate information or instructions.
4.3 The Buyer is liable to reimburse to Absolute any expenses properly incurred by it in performing any Services.
4.4 The quoted price is exclusive of any applicable VAT which the Buyer is liable to pay to Absolute.
5.1 Save where otherwise stated in the Quotation, Absolute may invoice the Buyer for the price of the Products and/or Services on or at any time after their delivery, unless Products are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of any Products, in which event Absolute may invoice Buyer for the price at any time after Absolute has notified Buyer that such Products are ready for collection of Absolute has tendered delivery of the Products, as the case may be.
5.2 Save where otherwise stated in the Quotation, the Buyer will pay the price of the Products and/or Services in full within 30 days of Absolute's invoice. Absolute may recover the price, notwithstanding that delivery may not have taken place and title in the Products not passed to the Buyer. Time of payment of the price is of the essence of the Contract.
5.3 Receipts for payment will be issued only upon requests. If Buyer fails to make any payment on the due date then, without prejudice to any other Absolute right or remedy, Absolute may:- (a) cancel the Contract or suspend the Services or any further deliveries to the Buyer; (b) appropriate any payment made by Buyer to such of the Products and/or Services (or products or services supplied under any other contract between Buyer and Absolute) as Absolute may think fit (notwithstanding any
purported appropriation by the Buyer); and (c) charge the Buyer interest (before and after any judgment) on the amount unpaid, at the rate of 3% per annum above Barclays Bank plc base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
5.4 Stage Payments
Unless otherwise agreed in writing, Absolute will invoice for work undertaken as follows:
On Project Acceptance - the Agreement & Contract Stage: 33% for projects of a value equal to or exceeding £5000, and 50% for projects with a value below £5000, of the agreed contract price is immediately payable, described as the ‘deposit payment’.
During the lifetime of the project, at the end of a given calendar month, Absolute will invoice for work produced in that calendar month. These instalments will be in accordance with our agreed payment schedule (see section 5.2).
If a website is not hosted on an ‘Absolute server’, Absolute reserves the right to request full and final payment before making a website and / or App live on a third party server.
6.1 Delivery of Products is made by the Buyer collecting the Products from Absolute's premises after Absolute has notified Buyer that the same are ready for collection or, if some other place for delivery is agreed by Absolute, by Absolute delivering the Products to that place. Delivery of Services takes place upon completion of the performance of such services.
6.2 Dates quoted for delivery of Products or performance of Services are approximate only and Absolute is not liable for delay in delivery or performance however caused. Products may be delivered in advance of the quoted delivery date upon Absolute giving reasonable notice to Buyer.
6.3 Where Products and/or Services are to be delivered in instalments, each delivery constitutes a separate contract and failure by Absolute to deliver any one or more of the instalments in accordance with these Conditions or any claim by Buyer in respect of any one or more instalments does not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 Time of delivery or performance shall not be of the essence of the Contract.
7. Risk and title
7.1 Risk in Products passes to the Buyer: (a) where Products are delivered from Absolute's premises, when Absolute notifies Buyer that the same are available for collection; or (b) where Products are delivered other than from Absolute's premises, on delivery or, if the Buyer wrongfully fails to take delivery of the Products, when Absolute has tendered delivery.
7.2 Notwithstanding delivery, passing of risk in the Products, or any other provision of these Conditions, title in Products does not pass to the Buyer until Absolute has received in cash or cleared funds full payment of the price of the Products and all other products and/or services to be supplied by Absolute to the Buyer for which payment is then due.
7.3 Until title in the Products passes to the Buyer, Absolute may require the Buyer to deliver up the Products to Absolute and, if it fails to do so, may enter upon any premises of the Buyer or third party where the Products are stored and repossess the same.
7.4 The Buyer may not pledge or charge by way of security any Products owned by Absolute, but if the Buyer does so all moneys owing by it to Absolute become (without prejudice to any other Absolute right or remedy) due and payable.
8. Warranties and liability
8.1 Absolute warrants that the Products and/or Services shall correspond in all material respects with the Brief (if any) as at delivery. Where there is no Brief then Absolute warrants that the Products shall be of satisfactory quality and that Services are performed with reasonable skill and care. However, Absolute is under no liability: (a) for any defect in the Products and/or Services arising from any drawing, design or specification supplied by the Buyer; (b) where the Buyer fails to follow Absolute's instructions or recommendations in connection with the use of any Products or the provision of Services; (c) where the Products are altered other than by Absolute; (d) if the price for
Products and/or Services has not been paid by the due date for payment; or (e) once any Products have been approved in writing by the Buyer.
8.2 Subject as provided in these Conditions and except where the Products and/or Services are supplied to a person dealing as a consumer (defined in Unfair Contract Terms Act 1977), all terms implied by law are excluded to the fullest extent permitted.
8.3 Any claim by the Buyer based on a defect in quality or condition of Products and/or Services or their failure to correspond with specification (a 'Claim') must (whether or not delivery is refused by the Buyer) be notified to Absolute within 7 days of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure, provided that the Buyer notifies Absolute of such defect or failure within one month of delivery. If delivery is not refused and the Buyer does not notify Absolute accordingly, then: (a) the Buyer may not reject any Products, (b) Absolute will have no liability for such defect or failure, and (c) Buyer is bound to pay the price as if the Products had been delivered in accordance with the Contract.
8.4 Where a valid Claim is notified to Absolute in accordance with these Conditions, Absolute may replace the Products or re-perform the Services, as appropriate, free of charge or refund to the Buyer the price of the Products and/or Services, but shall have no further liability to the Buyer.
8.5 Except where death or personal injury is caused by Absolute's negligence, Absolute is not liable to Buyer by way of representation (unless fraudulent), common law duty or under any express or implied term of the Contract, for any indirect, special or consequential loss or damage whether for loss of profit or otherwise (whether caused by the negligence of Absolute, its employees or agents or otherwise) arising in connection with the supply of the Products and/or Services or their use by the Buyer. Save where death or personal injury is caused by Absolute's negligence which liability is unlimited, the entire liability of Absolute in connection with the Contract shall not exceed the amount paid by the Buyer under the Contract during the preceding 6 months, except as expressly provided in these Conditions. Absolute's obligations under the Contract will be suspended to the extent that it is prevented or hindered from complying by any cause beyond its reasonable control.
8.6 Absolute will use reasonable endeavours to remedy such cause and will resume the performance of such obligations as soon as reasonably possible after the removal of the cause.
9. Insolvency of the Buyer
9.1 Without prejudice to any other Absolute right or remedy, Absolute may cancel the Contract or suspend any further deliveries under the Contract if:- (a) the Buyer makes a voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (other than by way of amalgamation or reconstruction); or (b) an encumbrancer takes possession, or a receiver is appointed, of any of the
Buyer's undertaking; or (c) the Buyer ceases, or threatens to cease, to carry on business; or (d) Absolute reasonably believes that any of the above events is about to occur.
9.2 Where any of the circumstances in clause 9.1 apply then if any Products have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10.1 Absolute may assign or sub-contract all or any of its rights and obligations under this Contract.
10.2 Absolute reserve the right to include a credit/link to our website in the footer of any website we have designed.
10.3 All websites are produced based on our standard support matrix, the most recent version of this can be accessed here.
This document defines the supported level of functionality for specific web browsers and operating systems. We reserve the right to change this document at any time based on changes in usage demographics.
10.4 Notices required or permitted to be given under these Conditions must be in writing addressed to the relevant party at its registered office or principal place of business.
10.5 Ultimate responsibility for the content of any website or printed material (including text and imagery) is the responsibility of the Buyer.
10.6 One month's notice is required for the termination of any service provided by Absolute.
10.7 No waiver by Absolute of any breach of the Contract by the Buyer is considered as a waiver of any subsequent breach of the same or any other provision.
10.8 If any provision of these Conditions is held by a competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question is not affected.
10.9 The Contract is governed by the laws of England. The Buyer will submit to the non-exclusive jurisdiction of the English courts.