Terms and Conditions
These are the Terms and Conditions for ATRIUM Creative Solutions Ltd (“ATRIUM-CS”), a company registered under Company Number 09520181 and whose registered office is at Gainsborough House – 109, Portland Street, Manchester, M1 6DN. By accepting the Quotation by e-mail, you shall be deemed to accept these Terms and Conditions (“Terms”), which shall apply and form part of your Contract with ATRIUM-CS.
“Consumer” shall mean any person who enters into a Contract with ATRIUM-CS other than in the course of business;
“Contract” shall mean the entire agreement between ATRIUM-CS and You the client and shall include any Order/Invoice/Quotation/ these Terms and Conditions including Schedules and any other document referred to in any of those documents;
“Contract Price” shall mean the total amount owed by You to ATRIUM-CS under the Contract as may be amended from time to time in accordance with the Terms;
“Due Date” shall mean the date for payment appearing on the Quotation or Invoice or, if none appearing, then 30 days from the date of Invoice;
“Intellectual Property Rights” shall mean all vested, contingent and future intellectual property rights including but not limited to any patent, trademark, service mark, registered design, copyright, design right, right to extract or exploit information from a database, database rights, know-how, confidential information or process, any application for any of the above, and any other intellectual property right recognised in any part of the world whether or not presently existing or applied for;
“Nominated Person” shall mean the person nominated either by You or ATRIUM-CS and who is given the authority by that party to provide instruction and agree matters in connection with the Contract on behalf of the party nominating him;
“Payments” shall mean payments made by You to ATRIUM-CS in accordance with the Contract, to be paid under these Terms and as maybe further set out in Schedule 2;
“Products” shall mean any item or product including but not limited to software supplied by ATRIUM-CS as part of the Contract; “Services” shall mean all services, work and activity performed by ATRIUM-CS under the Contract for You, including those services set out in Schedule 1;
“Support Services” shall mean agreed levels of support for any website or other services provided to You by ATRIUM-CS and pursuant to which You decide You wish on-going support or advice and as may be detailed at Part 2 of Schedule 1;
“Testing Criteria” shall mean any standard or output or other criteria, which the Services or Products must meet, if any, and as agreed between the Parties in writing;
“You” shall mean the client, whether you are an individual, firm, company or other trading entity and who enters into a Contract with ATRIUM-CS.
- FORMATION OF CONTRACT
A Contract shall be created between ATRIUM-CS and You by way of a confirmatory e-mail (or any other notification in writing from You) pursuant to a quotation submitted by ATRIUM-CS.
- PRODUCTS AND SERVICES
3.1. The Services and Products shall be provided and supplied by ATRIUM-CS to You in accordance with these Terms and Conditions as further described in Schedules 1 and 2.
3.2. Whilst ATRIUM-CS agrees to provide the Services to the best of its ability and in accordance with the best industry standard, this shall be the only warranty given to You by ATRIUM-CS under these Terms.
3.3. Any Products provided to You by ATRIUM-CS may be subject to their own terms and conditions and You agree that you accept those Products solely on that basis.
3.4. Unless any Testing Criteria is requested and agreed to in writing, all Services and Products shall be supplied by ATRIUM-CS under clause 3.2 above and no warranty is given by ATRIUM-CS that the Services or Products will achieve any particular standard, target or particular level of performance.
3.5. In the event any third party is requested to provide services which shall operate in conjunction with the Services, You accept that these services are offered by a third party and ATRIUM-CS shall have no liability whatsoever for those services other than to use its own reasonable endeavours to ensure the smooth running of such services in conjunction with the Services provided by ATRIUM-CS. By way of example, this would include any hosting agreement entered into with a third party in connection with the Services. In addition You will indemnify ATRIUM-CS in the event you were to breach any terms and conditions contained within any third party arrangement or any third party shall make any claim whatsoever against ATRIUM-CS for costs or losses in connection with services provided to You.
3.6. All dealings in connection with the Services and Products to be provided to You, shall be through the Nominated Persons. Each party has the right to alter its Nominated Person by notice in writing to the other party.
- PRICING AND PAYMENT TERMS
4.1. Unless otherwise agreed or set out on the Quotation or Invoice set out in Schedule 2, the full Contract Price must be made in cleared funds within 30 days of date of invoice (which shall be the Due Date in most cases).
4.2. ATRIUM-CS reserve the right to invoice completed items within any quotation or estimate for a project once that item or works have been completed or delivered.
4.3. Unless you are a Consumer, any payment not paid by its Due Date shall attract interest at the current permitted rate in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. If you are a Consumer, payments not made by the Due Date shall attract an interest rate of 2% above the base rate of National Westminster Bank at any one time.
4.4. In addition to interest payable under 4.2 above, any returned cheques or other failure to pay resulting in any form of penalty, administrative fee, or other cost levied against ATRIUM-CS, will be repayable
4.5. In the event any payment is not paid by its Due Date, ATRIUM-CS shall be entitled to cease to provide any further Services or deliver further Products until full payment is made. In the event You have paid any amount due under the Contract prior to failure to make further due payments, ATRIUM-CS shall be under no liability to repay or refund any amounts paid.
4.6. In the event that for any reason You delay performance of the Contract or Services, whether such delay is caused by your own fault or not, and you have not provided notice to ATRIUM-CS and obtained their agreement to any postponement or delay, then You accept that this may cause loss or costs to ATRIUM-CS. Notwithstanding the generality of this, ATRIUM-CS may have to turn down other work in order to provide the Services to You and the delay may therefore result in loss of work to ATRIUM-CS. In the event this occurs, then You agree that ATRIUM-CS, in its sole discretion, may charge you for its reasonable lost time and commercial losses occasioned by Your delay. ATRIUM-CS will be entitled to recover the losses and costs suffered by it by charging up to its daily rate (as at the commencement of the works forming the subject of the Contract with you) for the maximum charge of 5 working days for any one incident of delay.
4.7. In the event you make payments under the Contract via a third party secured system such as Paypal, then you agree to abide by all such third party’s terms and conditions. For the avoidance of doubt ATRIUM-CS shall not be a party to any such arrangement and shall not be liable under any circumstances for any failure to make payment or loss incurred in connection with those services.
4.8. If invoiced services have been met and delivered, the customer does not have the right for refund as the service has been provided as agreed and mentioned in the invoice.
- INTELLECTUAL PROPERTY RIGHTS AND OTHER THIRD PARTY RIGHTS
5.1. ATRIUM-CS acknowledges that in the normal creation of a website for You. Ownership of all content, imagery and other material shall remain with You and, subject to the other parts of this clause, ATRIUM-CS does not claim rights in any such Intellectual Property Rights.
5.2. In the event that any products or services used as part of the Contract, but belonging to a third party, then that third party’s terms and conditions may apply to such products and services and You shall abide by those terms and indemnify ATRIUM-CS against any claim, costs, loss or other action which could be bought by such third party in connection with any breach. This shall include rights to any photographs, graphics or any other items belonging to a third party which shall remain the property of that third party at all times.
5.3. In the event ATRIUM-CS provides content management services, then it may provide those services using a third party’s Intellectual Property Rights under licence directly from that third party, or a tool for which ATRIUM-CS only holds a licence. You acknowledge that You will enjoy only such rights and under such terms and conditions as shall apply to those tools or software as made known to You by ATRIUM-CS, and further that you shall indemnify ATRIUM-CS against any loss claim or costs given by any third party in connection with any alleged infringement of those rights.
5.4. Provided all Products are paid in full, they shall be supplied with such licence or right to use that either ATRIUM-CS or the third party may provide subject to any limitations of such use made known to You. For the avoidance of doubt, and without limitation, any rights granted by ATRIUM-CS shall include a right to use under licence but not to duplicate, copy, sell or otherwise transfer to another party.
5.5. In the event that You provide anything to which Intellectual Property Rights attach, for use within the Contract, for example, but without limitation, text for insertion or documents or logos, You warrant to ATRIUM-CS that you own or have the right to use such Intellectual Property Rights and pass these on for use in connection with the Contract and You shall fully indemnify ATRIUM-CS for any claim as a result of Your not having such rights.
5.6. Notwithstanding the generality of the above, You agree to indemnify ATRIUM-CS against any actions, claims, proceedings, damages, costs and expenses arising from any actual or alleged infringement of any of ATRIUM-CS’s or a third party’s Intellectual Property Rights and that You will notify ATRIUM-CS within 3 days of your being advised of any such actual or alleged infringement. In the event ATRIUM-CS, in its sole discretion, wishes to take conduct of any such negotiation or potential litigation, You provide that You will agree to this and provide all reasonable assistance.
- WARRANTIES AND LIMITATION OF LIABILITY ON ATRIUM-CS
6.1. Subject to clause 3.2, and subject to any Testing Criteria agreed between the parties, ATRIUM-CS offers no warranty or guarantee that the Services will achieve any particular criteria or standard, and in particular ATRIUM-CS shall not be responsible for any bug, electronic virus, worm or other fault or problem which may occur during the course of the Contract or thereafter.
6.2. ATRIUM-CS shall not be responsible for any consequential loss or damage occurred, however caused, including, but without limitation, loss of profits or other consequential claim.
6.3. Whilst ATRIUM-CS will make all due effort to provide the Services and Products in a timely and appropriate manner, subject to clause 6.4 below, ATRIUM-CS shall not be liable for any direct loss suffered by You as a result of its performance of the Contract. Should ATRIUM-CS be held in any way responsible for any direct loss under this contract, that liability shall be limited to such amount as You have already been paid towards the Contract Price.
6.4. Notwithstanding 6.2 and 6.3 above, ATRIUM-CS shall not attempt to restrict its liability for death or personal injury caused as a result of this Contract.
6.5. In particular, the parties acknowledge that, unless expressly agreed otherwise, ATRIUM-CS is not responsible for the hosting of Your website and no guarantee is provided by ATRIUM-CS with respect to that hosting or the availability of it or any interruption to Your business occasioned by the hosting service carried out by a third party.
6.6. ATRIUM-CS specifically excludes any warranty or liability in connection with the compatibility of the website developed by ATRIUM-CS under this Contract with any other web browser.
6.7. In the event the services of third parties are used in connection with the Contract, for example a hosting company’s services, you accept that additional costs might be incurred in connection with the use of these services. These costs shall be identified in either the Invoice or Quotation, or in Schedule 2, as appropriate, and shall be additional to the costs charged by ATRIUM-CS for the Services.
- YOUR WARRANTIES AND OBLIGATIONS
7.1. You acknowledge that because of the nature of the Contract, it is necessary that Your own equipment is appropriate for use in connection with the Services and Products and is correctly installed and maintained. You agree to maintain the minimum criteria ATRIUM-CS agrees with You and to run any equipment in the manner advised by ATRIUM-CS. In the event You wish specific advice on a consultancy basis with regard to any element of your own equipment or otherwise, this shall be separately agreed as Support Services and identified in Part 2 of Schedule 1.
7.2. You warrant and agree that you will not, and neither will You permit any employee, agent, subcontractor or any other person under your control, to use any system incompatible with the website designed and built by ATRIUM-CS and where support is provided by ATRIUM-CS.
7.3. You specifically warrant and agree that You will not provide any information for use in connection with the Contract which may be deemed illegal, offensive or controversial in any way, and that ATRIUM-CS reserves a right in its sole discretion to determine whether it believes any such information is illegal or offensive and, if it does deem it to be so, then it may terminate the Contract upon immediate notice and refuse to use such fact or information. If this should occur, no monies already paid by You shall be refunded.
7.4. In order to assist and facilitate ATRIUM-CS’s fulfilment of the Contract, You will provide unrestricted access to your server and other systems required in order for the Services to be properly performed or the Products installed. This will include, without limitation, full access to existing and required information which You may hold which relate to the provision of the Services and which will facilitate the provision of Services. ATRIUM-CS shall not be responsible in the event You fail to provide such access within reasonable timeframe and on a reasonable basis and delays or other interruption in the Services occur.
- USE OF IMAGES/TESTIMONIAL
8.1. You confirm that unless expressly agreed to the contrary, ATRIUM-CS may include details of the Contract and Services provided to You, including images which will show the nature of the work and services provided, and including your name and details, in connection with ATRIUM-CS’s own website and any advertising or promotional material used by ATRIUM-CS from time to time.
- DATA BACK-UPS
9.1. You agree that it is Your responsibility to maintain all back-ups of information supplied in connection with any website or other Products or Services provided under the Contract. Unless expressly agreed otherwise in writing, it shall not be the responsibility of ATRIUM-CS to make or retain any back-up of any information stored. Any loss of data as a result of a failure of any back-up shall be Your sole responsibility.
10.1. The parties agree that particular details and specifications and other data which may be provided by either party but in particular by You to ATRIUM-CS shall be treated in confidence and that, unless and until such information becomes available to the public, then all such information which could reasonably be considered as confidential, shall be so treated by either party during the term of this agreement and thereafter. For the avoidance of doubt, any information appearing on any website shall immediately be treated as in the public domain and the parties shall also be released from the obligations of this clause if required to release information pursuant to any statutory requirement or Court Order.
- COMPLAINTS AND CUSTOMER SERVICE
11.1. ATRIUM-CS will use all reasonable endeavours to respond to any question or complaint within 7 working days. Any complaint must be made in writing by a Nominated Person and the notice provisions at clause 13.5 will apply.
12.1. The Contract will terminate either at the end of the provision of Services set at Schedule 1 or as expressly agreed in the event a date has been agreed and set out in Schedule 1.
12.2. Either Nominated Person may give the other 30 days’ written notice to terminate the Contract, (“Notice Not For Breach”).
12.3. In the event that ATRIUM-CS gives Notice Not For Breach, fees paid for Services, which have not been provided, will be refunded with the exception of any fees that ATRIUM-CS has agreed to pay (for example for third party hosting fees) and which ATRIUM-CS is therefore liable to pay irrespective of the termination.
12.4. Subject to clause 7.3 (where termination may be immediate), either party may terminate the Contract on written notice to the party in breach of any term of the Contract where that party fails to remedy such breach within 30 days of Notice.
12.5. If ATRIUM-CS terminates on 30 days’ notice for breach, You shall remain liable to pay all monies that would otherwise have been payable under this Contract, and no refund will be given for services pre-paid in such circumstances.
13.1. Severance, if any of these Terms shall be determined to be invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction, then such term or condition shall be severed and the remaining Terms and Conditions shall provide and remain in full force and effect and continue to be binding and enforceable.
13.2. Force Majeure
Either party will not be liable for any failure or delay in performing its obligations under this Agreement to the extent that this failure or delay is the result of any cause or circumstance beyond the reasonable control of that party including Acts of God, war, civil commotion or industrial dispute and that failure could not have been prevented or overcome by that party acting reasonably and prudently. If either party is prevented from performing its obligations for a period exceeding one month due to Force Majeure then the other party may terminate this Agreement on 7 days written notice.
These Terms and Conditions shall be interpreted, construed and enforced in accordance with the laws of England and Wales and the parties agree to be subject to the non-exclusive jurisdiction of the English Courts.
13.4. Third Party Rights
A person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
Notice shall be validly given if given to the Nominated Person of that party by e-mail with confirmatory receipt or, failing that by mail to the mailing address given by You or to the Registered Office of ATRIUM-CS.
13.6.1. Either party may assign the rights and obligations of the Contract upon written notice to the other and receiving written consent of the other party, such consent not to be unreasonably withheld.
13.6.2. ATRIUM-CS reserves the right to subcontract the performance of Services hereunder but shall remain liable for the performance of its subcontractors.
13.7. Entire Agreement
These Terms, together with the Contract and all documents referred to therein shall constitute the entire agreement between the parties relating to the Services or Products.
Schedule 1. Services
PART 1. MAIN SERVICES
Provision of services as detailed by quotations on each project.
PART 2. SUPPORTING SERVICES
The support period offered by ATRIUM-CS (renewable by agreement) is 3 months (90 days) from the date of delivery.
All levels of support are provided during regular business hours of 09:00 – 17:00 Monday to Friday (excluding banks holidays). ATRIUM-CS agrees to answer any support requests within 24 hours (excluding weekends and bank holidays) of receiving the request by email, SMS or phone call. If a request is urgent, ATRIUM-CS will endeavour to answer the request as soon as possible during the day the request was made. ATRIUM-CS will be given reasonable notice to any exceptions to this response timeframe.
ATRIUM-CS provides the following support services as part of this contract:
- Set up of the supplied web application in the provided web hosting account (this includes any web server and database configuration as permitted by the hosting company).
- Liaising with the hosting company at the request of ATRIUM-CS for the purposes of investigating any reported problems with the hosting platform that are affecting the performance or visibility of the delivered web application.
Correction of any functionally critical bugs found that have been directly introduced by ATRIUM-CS (note: services/products provided by third parties are not covered by this standard support arrangement).
- ATRIUM-CS is not liable for any loss of data caused by third party hosting services provided by the customer, so if anything does go wrong ATRIUM-CS can charge the client more for loss of time for ATRIUM-CS
Where direct support is not supplied for third party products/services, ATRIUM-CS agree to provide an investigation service chargeable at an hourly rate applicable at the time of the reported incident. The result of such an investigation will either be an implemented fix (again provided at the applicable hourly rate) or, where a direct fix cannot be applied, advice in how to obtain relevant support. Any applicable service level agreements offered to ATRIUM-CS by third parties (including those that offer
support outside of ATRIUM-CS’s business hours) will be extended to ATRIUM-CS. Any out of hours contact details will be provided to ATRIUM-CS upon delivery of the final web application.
Schedule 2. Payment Terms
Unless otherwise stated in a relevant quote, estimate or invoice, payment terms for this project are as follows:
Full payment required 30 days after date of invoice provided at final delivery of the project, or 1 calendar month after the project inception (whichever is sooner).
Payment is accepted with the following methods: Bank Transfer
Bank: Barclays UK PLC.
Bank Account: 63106837
Sort Code: 20-54-58