TERMS AND CONDITIONS

As you'll have noticed in our Terms of Engagement, we like to keep everything as clear and simple as possible, and free of gobbledegook. Here, however, we give you the contractual legalese of our Terms and Conditions to ensure that our mutual posteriors are covered, should the unlikely need arise to draw pistols at dawn. As with our Terms of Engagement, please read this carefully before making any payments to us, as payment means acceptance of these terms.

1. Application of Terms and Conditions

1.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any quotation or offer of the Seller which is accepted by the Buyer, or any order of the Buyer which is accepted by the Seller; and
1.2 These Terms and Conditions shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted by the Seller, or any such order is made or purported to be made, by the Buyer.

2. Interpretation

2.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Business Day” means any day other than a Saturday, Sunday or bank holiday;
“Buyer” means the person who accepts a quotation or offer of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller;
“Contract” means the contract for the purchase and sale of the Goods which shall incorporate, and be subject to, these Terms and Conditions;
“Contract Price” means the price stated in the Contract payable for the Goods;
“Goods” means the goods and services (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with the Contract;
“Month” means a calendar month;
“Seller” means Peebles Design, 8 Biggiesknowe, Peebles EH45 8HS, Scottish Borders, Scotland.
2.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
a) “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
b) a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
c) “these Terms and Conditions” is a reference to these Terms and Conditions and any Schedules as amended or supplemented at the relevant time;
d) a Schedule is a schedule to these Terms and Conditions; and
e) a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule.
f) a “Party” or the “Parties” refer to the parties to these Terms and Conditions.
2.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
2.4 Words imparting the singular number shall include the plural and vice versa.
2.5 References to any gender shall include the other gender.

3. Basis of Sale

3.1 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
3.2 No variation to these Terms and Conditions, or to the Contract, shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
3.3 Sales literature, price lists, website pages and other documents issued by the Seller in relation to the Goods are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance. No contract for the sale of the Goods shall be binding on the Seller unless the Seller has issued a quotation which is expressed to be an offer to sell the Goods or has accepted an order placed by the Buyer by whichever is the earlier of:
a) the Seller’s written acceptance;
b) the Seller’s invoice.
3.4 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

4. Orders and Specifications

4.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller’s authorised representative.
4.2 The specification for the Goods shall be that set out in the Seller’s estimate/quotation document.
4.3 Illustrations, photographs or descriptions whether in catalogues, brochures, websites, price lists or other documents issued by the Seller are intended as a guide only and shall not be binding on the Seller.
4.4 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Buyer’s specification, which do not materially affect their quality or performance.
4.5 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller on the terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation.

5. Price

5.1 The Contract Price of the Goods shall be as agreed in writing by the Seller and the Buyer.
5.2 Where the Seller has quoted a price for the Goods the price quoted shall be valid for 14 days only or such lesser time as the Seller may specify.
5.3 The Seller may allow the Buyer quantity discounts subject to and in accordance with the conditions set out in the Seller’s estimate/quotation.
5.4 The Price is inclusive of fees for digital delivery.
5.5 The Contract Price is exclusive of any applicable value added tax (VAT), excise, sales taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods, which the Buyer shall be additionally liable to pay to the Seller.

6. Payment

6.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall invoice the Buyer for the Contract Price of the Goods in accordance with the schedule set out and as agreed in writing by the Seller and the Buyer.
6.2 The Buyer shall pay an advance fee, as agreed in writing by the Seller and the Buyer, prior to the commencement of the project. All projects require a 50% deposit of estimate/quotation prior to commencement. Under no circumstance is the deposit refundable once any work on the project has commenced.
6.3 Payment shall be made on the due date notwithstanding that delivery may not have taken place and/or that the property in the Goods has not passed to the Buyer. The time for the payment of the Contract Price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
6.4 All payments shall be made to the Seller as indicated on the invoice issued by the Seller. All invoices are due upon receipt. Invoices are issued by email.
6.5 Provision of services outside the remit of a Contract may be carried out on an hourly rate basis where the minimum charge is for one (1) hour.

7. Delivery

7.1 Seller will install and publicly post or supply the Buyer’s website within 2 working days of receiving cleared final payment, unless a delay is specifically requested by the Buyer and agreed by Seller.
7.2 Seller cannot accept responsibility for any alterations caused by a third party occurring to the Buyer’s website and/or webpages once delivered. Such alterations include, but are not limited to additions, modifications or deletions.

8. Risk and Retention of Title

8.1 Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
8.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, legal and beneficial title of the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods.
8.3 Sub-Clause 8.2 notwithstanding, legal and beneficial title of the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the Contract Price of the Goods and any other goods supplied by the Seller and the Buyer has repaid all moneys owed to the Seller, regardless of how such indebtedness arose.
8.4 The Buyer’s right to possession of the Goods in which the Seller maintains legal and beneficial title shall terminate if:
a) the Buyer commits or permits any material breach of his obligations under these Terms and Conditions;
b) the Buyer enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986, the Insolvent Partnerships Order 1994 (as amended), or any other scheme or arrangement is made with his creditors;
c) the Buyer is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors;
d) the Buyer convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertaking or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Buyer, notice of intention to appoint an administrator is given by the Buyer or any of its directors or by a qualifying floating charge-holder (as defined in paragraph 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer.

9. Assignment

9.1 The Seller may assign the Contract or any part of it to any person, firm or company without the prior consent of the Buyer.
9.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.

10. Defective Goods

10.1 If on delivery any of the Goods are defective in any material respect the Buyer must give written notice of such defect to the Seller within 5 Business Days of such delivery, the Seller shall at its option:
a) replace the defective Goods within 10 Business Days of receiving the Buyer’s notice; or
b) refund to the Buyer the price for those Goods (or parts thereof, as appropriate) which are defective;
c) but the Seller shall have no further liability to the Buyer in respect thereof.
10.2 Subject as expressly provided in these Terms and Conditions, and except where the Goods are sold under a consumer sale, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
10.3 Except as expressly provided in these Terms and Conditions, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law or under statute, or under the express terms of the Contract, for any direct or consequential loss or damage sustained by the Buyer (including without limitation loss of profit or indirect or special loss), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its servants or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer.

11. Buyer's Default

11.1 If the Buyer fails to make any payment as agreed in writing by the Seller and the Buyer, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
a) cancel the order or suspend any further deliveries to the Buyer;
b) cancel or suspend any services provided to the Buyer by the Seller. Seller is not responsible for any loss of data incurred due to the cancellation or suspension of a service. Cancellation or suspension of a service does not relieve the Buyer of the obligation to pay any outstanding charges assessed to the Buyer’s account.
c) appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
d) charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 20% per annum above the Bank of England’s base rate from time to time, until payment is made in full (a part of a month being treated as a full month for the purpose of calculating interest).
11.2 Buyer agrees to provide all text, image and video content to Seller no later than two (2) weeks from the date of the first cleared advance payment.
a) Should Buyer not provide all such content within four (4) weeks from the date of the first cleared advance payment, Seller reserves the right to advise the Buyer of a revision to the Contract Price on new or revised pricing schedules that may be introduced from time to time.
b) Should Buyer not provide all such content within six (6) weeks from the date of the first cleared advance payment then the Buyer is considered to be in default of the project, the project may be terminated by the Seller and the Buyer will be sent the final invoice for immediate payment. Seller will agree, at Seller’s discretion, to recommence the commission after agreement is reached on a new quotation document and once the original fees have been paid.
11.3 This condition applies if:
a) the Buyer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract;
b) the Buyer becomes subject to an administration order or enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986 or the Insolvent Partnerships Order 1994 (as amended) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation;
c) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer;
d) the Buyer ceases, or threatens to cease, to carry on business; or
e) the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
11.4 If sub-Clause 11.3 applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

12. Limitation of Liability

12.1 the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract Price; and
12.2 the Seller shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

13. Confidentiality, Publications and Endorsements

13.1 The Buyer will regard as confidential the contract and all information obtained by the Buyer relating to the business and/or products of the Seller and will not use or disclose to any third party such information without the Seller's prior written consent provided that this undertaking shall not apply to information which is in the public domain other than by reason of the Buyer's default.
13.2 The Buyer will not use, authorise or permit any other person to use any name, trademark, house mark, emblem or symbol which the Seller is licensed to use or which is owned by the Seller upon any premises, note paper, visiting cards, advertisement or other printed matter or in any other manner whatsoever unless such use shall have been previously authorised in writing by the Seller and (where appropriate) its licensor.
13.3 The Buyer will use all reasonable endeavours to ensure compliance with this Clause 13 by its employees, servants and agents.
13.4 A link to https://peebles.design/ will appear in small type at the bottom of the Buyer’s website, designed to fit in with the overall website design.
13.5 The provisions of this Clause 13 shall survive the termination of the Contract.

14. Communications

14.1 All notices under these Terms and Conditions and under the Contract shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
14.2 Notices shall be deemed to have been duly given:
a) when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; or
b) when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated.
14.3 All notices under this Agreement shall be addressed to the most recent address, email address, or facsimile number notified to the other Party.

15. Data Protection

15.1 The Buyer must ensure that all necessary arrangements have been made with, and permissions obtained from, people and places that may be recorded on video as a result of the Company supplying the product(s) or service(s) - and that such recording is in compliance with Data Protection.

16. License

16.1 All design elements, including but not limited to logos and websites, come with
the following licence: Unlimited, non-exclusive licence.
16.2 This means that you can use the website as you like and with an unlimited number of views. You own the website in its entirety. The content within the website is non-exclusive meaning we may re-use design elements in other websites without restriction. If you would like an exclusive licence, please contact us.

17. Copyright

17.1 The Buyer retains the copyright to data, files and graphic logos provided by the Buyer, and grants Seller the rights to publish and use such material.
17.2 The Buyer must obtain permission and rights to use any information or files that are copyrighted by a third party. The Buyer is further responsible for granting Seller permission and rights for use of the same and agrees to indemnify and hold harmless Seller from any and all claims resulting from the Buyer’s negligence or inability to obtain proper copyright permissions. Go ahead of a project by cleared advance payment shall be regarded as a guarantee by the Buyer to Seller that all such permissions and authorities have been obtained. Evidence of permissions and authorities may be requested.
17.3 Where stock photography and / or video is provided by Seller, Seller grants the Buyer the rights to publish and use such material within the website provided. Those stock images and / or videos may not be used for other purposes without the express written permission of Seller.

18. Changes to Drafts and Production

18.1 Two rounds of changes and revisions to a basic (text) logo are included as standard. Unlimited changes and revisions are included with a premium logo design.
18.2 Unlimited changes and revisions to the initial website draft layout are included as standard. Such changes may include, but are not limited to: changes to layout, menu items, titles and images.
18.3 After sign off of the draft, two rounds of changes to the website are included as standard. Within reason such changes may include, but are not limited to: changes to layout, menu items, titles and minor changes to content.
18.4 We always advise prior to beginning chargeable work. Requests for additional changes outside of the 2 standard edits will be charged at our standard hourly rate in addition to the agreed contract price.
18.5 You will provide us with all the source media including digital video, logos, trademarks, photography required to carry out our obligations under the contract prior to commencing the final website, unless agreed otherwise.
18.6 We will retain source files for all products and services rendered. We do not provide clients with source files/Library content produced by us for website projects.

19. Specification

19.1 Responsive/Mobile First Website: a website that displays correctly across multiple modern browsers and devices. For the purpose of Contract, the correct display of a website at the time of delivery on modern device/browsers as confirmed by a third party service like http://www.browserstack.com/screenshots.

20. Turnaround

20.1 Seller aims to work to fixed turnarounds where possible. Although this may not be possible due to the varying nature of job requirements, Seller will make every effort to meet the deadlines below:
a) Unless otherwise agreed, start the project within 2 working days of receiving the cleared advance payment.
b) Initial draft of the proposed website layout produced within 5 working days from project start or receipt of brief whichever is later.
c) First full website version produced within 8 working days from sign off of the initial draft or receipt of all text and image content whichever is later.
d) Final website produced within 8 working days from sign off of the first full website version or receipt of required revisions whichever is later.
20.2 Specific deadlines provided will be deemed to include a proviso that in the event that Seller requires the decision, approval, consent or any other communication from the Buyer in order to continue with the provision of the project or any part thereof at any time, the Buyer shall provide the same in a reasonable and timely manner. Any delay in the project resulting from the Buyer’s failure or delay in responding to such communications shall not be the responsibility or fault of Seller.
20.3 At the completion of each stage, such materials will be deemed to be accepted and approved unless the Buyer notifies Seller otherwise within five (5) working days of the date the review materials are made available to the Buyer.
20.4 Seller’s office hours are 9.00 a.m. to 5.00 p.m. Monday to Friday unless notified otherwise.

21. Buyer Content, Access Requirements, Media Formats and Disaster Recovery

21.1 Buyer agrees to provide all text, image and video content to Seller no later than two (2) weeks from the date of the first cleared advance payment. Refer to Clause 11 for further information.
21.2 If the Buyer’s website is to be installed on a third-party server:
a) Seller must be granted temporary read/write access to the Buyer’s storage directories and those directories must be accessible via FTP. If applicable, Seller must be granted temporary read/write access to the Buyer’s databases and those databases must be accessible via phpMyAdmin.
b) Depending on the specific nature of the project, other resources might also need to be configured on the server; these other resources are to be made at the Buyer’s expense.
c) Contract Price does not cover the time associated with the installation of software on a third-party server or the configuration of a third-party server by Seller. In addition, it does not cover email support for such issues. Should the Buyer request Seller to aid in the set up and/or testing of the third-party server, or provide email support for the same, then additional charges will be incurred, charged on an hourly rate basis. Such fees are payable on completion prior to going live.
21.3 Seller may require additional temporary access rights for other third-party services such as Twitter and Facebook.
21.4 The Buyer is responsible for the regular backup of all website files and databases. We recommend that the Buyer creates their own regular backup of any database, web files or other digital material to at least two locations.
21.5 Buyer will provide all media in the following formats using commonly accepted codecs compression:
a) Video: mpeg1, mpeg2, mpeg4 (.mpg), Audio Video Interleave File (.avi), Apple Quicktime Movie (.mov), Windows Media Video File (.wmv).
b) Audio: Advanced Audio Coding File (.aac), MP3 Audio (.mp3), Wave Audio File (.wav), Windows Media Audio File (.wma).
c) Images: Bitmap Image File (.bmp), Graphical Interchange Format (.gif), JPEG image file (.jpg), portable network graphic (.png), Adobe Photoshop file (.psd), Encapsulated PostScript file (.eps), Adobe Illustrator file (.ai), Affinity Designer file (.afdesign), Affinity Photo (.afphoto).
d) To send video/audio/images in alternative formats please contact us and we will try and accommodate your specification.

22. Relationship of the Parties

22.1 Nothing in this Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.

23. Force Majeure

Neither Party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.

24. Waiver

The Parties agree that no failure by either Party to enforce the performance of any provision in these Terms and Conditions or under the Contract shall constitute a waiver of the right to subsequently enforce that provision or any other provision. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.

25. Severance

The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions or the Contract are found to be unlawful, invalid or otherwise unenforceable, that/those provisions shall be deemed severed from the remainder of these Terms and Conditions (and, by extension, the Contract). The remainder of these and the Contract shall be valid and enforceable.

26. Third Party Rights

A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.

27. Law and Jurisdiction

27.1 These Terms and Conditions and the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of Scotland.
27.2 Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or to the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of Scotland.

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