These are the terms and conditions for trading of PWAR Creative Limited (“PWAR”, “we”, or “us”). If you accept a quote or estimate that we supply, then you accept these terms and conditions and agree to be bound by them.
1. Provision of services
1.1 Unless varied expressly in your order (if PWAR accepts such variations) the specification for the services shall be that set out in a written quotation (“Quotation”) provided by us to you. Any drawings and descriptions produced in the Quotation are intended as a guide only and shall not be binding on PWAR. We shall endeavour to ensure that all services provided accord as closely as possible to any drawings and specifications provided to you.
1.2 PWAR will provide you with the services (“the Services”) set out in the Quotation. Only those services set out in the quotation will be provided by PWAR, any amendments, add-ons or other changes must be agreed in writing and may be subject to an additional charge. These terms and conditions are the general terms and conditions on which the Services are supplied and together with any Quotation form the total agreement between us.
2. Costs and payments
2.1 You must pay all charges as set out in the Quotation. As prices quoted by PWAR may change at any time with notice, please check the price on the Quotation before confirmation. Quotations are valid for a period of 30 days unless otherwise stated. In the case of an estimate, the final cost may vary from that given.
2.2 You will remain liable for all fees due to PWAR up to the stage when Services have been discontinued or suspended due to a failure on your part to comply with these terms and conditions.
2.3 You will be invoiced as agreed in the Quotation, or if no invoicing details are given then 50% of the total sum will be required before commencement, and the remainder upon completion. All accounts are payable before delivery of final artwork or uploading of final files to live sites.
2.4 We understand and will exercise our statutory right to claim interest and compensation for debt recovery costs under the late payment legislation if we are not paid according to the agreed terms. Ownership of all printed material and intellectual property rights remain with us, PWAR, until payment.
2.5 You must pay PWAR charges without any set off, counter claim or deduction unless the same is agreed in writing between us.
2.6 PWAR reserves the right to prioritise early paying clients and to charge urgency fees for turnaround within 3 working days.
2.7 Agreed costings are conditional on you supplying data required for work within 10 working days of confirmation of order or as agreed. PWAR reserves the right to revise costings if that condition is not met in line with charges applying at the relevant time.
2.8 No final artwork, printed material or files will be delivered until final invoices are paid in full. Payment by cheque will necessitate waiting for clearance before supply of files. Delivery being one or more of the supply of printed material; the supply of final artwork digital files to printer, on disk, via email or uploaded to your nominated ISP. Source/construction files remain the property of PWAR unless arranged otherwise.
2.9 Quotations which include print work will allow for PWAR to procure, manage and deliver the finished work from a printer, and to resolve any issues that arise during that process. For jobs which are design only (i.e. if you arrange the printing yourself, or via a third party) the responsibility of PWAR extends only to supplying you with the finished artwork files ready for print.
3. Limitation of Liability
3.1 All terms conditions, warranties, undertakings inducements and representations, whether express or implied, statutory or otherwise relating to the provision of the Services by PWAR not contained in the Agreement are excluded and PWAR WILL NOT ACCEPT LIABILITY FOR ANY LOSS OR DAMAGE (INCLUDING CONSEQUENTIAL LOSS OR DAMAGE) HOWEVER CAUSED (WHETHER BY NEGLIGENCE OR OTHERWISE) WHICH MAY BE SUFFERED OR INCURRED OR WHICH MAY ARISE DIRECTLY OR INDIRECTLY with respect to the Services provided.
3.2 Where any applicable legislation implies any term, condition or warranty into the Agreement or in respect of PWAR’s relationship with you, or otherwise gives you a particular remedy against PWAR and the legislation or any other legislation renders void or prohibits provisions excluding or modifying the application of, exercise of, or liability under such implied term, condition, warranty or remedy will be deemed to be included in the Agreement or as the case may require apply to the relationship between PWAR and you. However, PWAR’s liability for any such breach of such implied term, condition or warranty or under such remedy, will be limited, at PWAR’s option, in any one or more of the ways permitted in that legislation, including, where so permitted if the breach relates to Services the supplying of the Services again or the payment of the cost of having those Services supplied again.
3.3 You acknowledge that online and printed work is not guaranteed to be 100% error free and acknowledge that the existence of errors falling short of a complete failure of consideration shall not constitute a reason to terminate this agreement.
3.4 All content provided for use online may be published on the internet and as such cannot be fully protected from copying or downloading by anybody.
4. Suspension of Services
4.1 PWAR reserves the right to suspend the Services in any case where you fail to perform your obligations under this agreement. If payment for the Services is not received within the terms of payment stipulated by us websites and email facilities may be removed and delivery of printed material may be withheld until payment is confirmed.
4.2 PWAR may from time to time and without notice or liability to you suspend any of the Services if the reason for doing same is an event beyond the reasonable control of PWAR.
5. Termination
5.1 PWAR may discontinue the Services if an amount payable to PWAR is overdue. In any event, where an amount payable is overdue by more than 30 days, PWAR may remove a website permanently or discontinue any related services such as email hosting. In such circumstances, you remain liable for the total cost of the contract including all disbursements; unless otherwise agreed between the parties.
6. Contents and Undertaking
6.1 You will be solely responsible for the content you provide. PWAR is not responsible for proof reading any content unless specifically agreed.
6.2 PWAR makes no representations to you concerning the content or functionality of your website beyond that in the design agreement. It is your responsibility to ensure that it meets your requirements.
6.3 If you provide PWAR with goods, material, photographs, film, data or information to be used in any form, you hereby warrant that these do not infringe the rights of any third parties and indemnify PWAR against any action taken against PWAR by any such third parties.
6.4 Without limiting the generality of the foregoing, you agree not to infringe the copyright trademark, privacy or personal or proprietary rights of third parties, supply or issue libelous, abusive, obscene material, distribute spam, warez or malware, or disparage the products or services of any third party.
6.5 PWAR for its part hereby undertakes not to knowingly infringe the rights of third parties in activities conducted on your behalf.
6.6 You are solely responsible for dealing with persons who access your data or webpage and warrant that you will not refer complaints or inquiries in relation to such data to us.
7. Technical Support, Changes and Maintenance
7.1 Technical assistance via telephone, remote login or email may be offered. Queries taking more than 15 minutes to deal with or site maintenance will be charged at hourly rates.
8. Web Hosting and backup
8.1 If you choose to organise your web hosting arrangements yourself, final exported sites will be uploaded to your preferred host company or supplied on disk to you at the cost agreed in the Quotation. If you prefer to use alternative hosting then full access to the alternative server will be required, and it must be adequate to host the site.
8.2 Please note that PWAR accepts no responsibility for delays or down time, breakdowns or data loss caused by Internet Service Providers (ISPs).
8.3 Supervised hosting means that the website and email service will be hosted on part of PWAR’s own server or another equivalent server. PWAR will oversee the technical management of the server. You accept that this is not a fully backed-up service. Full backup is available on request but there will be an extra cost for this. Any downtime will be investigated and rectified.
9. Dispute Resolution
9.1 The parties agree that if any dispute should arise under this agreement, attempts in good faith by both parties will be made to resolve the matter fairly before resorting to Court procedures. In doing so, each party agrees to use its reasonable endeavours to:
9.1.1 Clearly communicate in writing the background facts leading to or causing the dispute and set out clearly what action is required to settle the dispute; and
9.1.2 Select a way of resolving the dispute and explain why that way of resolving the dispute can be said to be a fair resolution.
9.2 Attempts to resolve the dispute must follow the following procedure:
9.2.1 The person complaining shall set out in writing the background, the issues and the outcome desired;
9.2.2 The person to whom the complaint is addressed will reply in writing within 10 business days to each issue in dispute setting out its perspective on the issue and the outcome desired;
9.2.3 If the dispute is not resolved in accordance with such reference, the matter shall be referred to a single agreed arbitrator within 10 business days; whose decision shall be final. If the parties are unable to agree on a suitable arbitrator then they shall seek the appointment of a suitable arbitrator by the President for the time being of the Chartered Institute of Arbitrators.
10. Intellectual Property
10.1 All creation files remain the property of PWAR.
10.2 The copyright to the work or any part of it, where held by PWAR, remains with PWAR and is licensed for use in the work/s identified in the design agreement only unless otherwise stated. Other material remains the copyright of the copyright owner unless explicitly transferred. If the client wishes to obtain the copyright outright or wishes to use material (e.g. text, a photograph or graphic image) for other purposes, then the client must seek the consent of PWAR and/or the copyright holder to do so. The client is to supply all materials and information required for PWAR to complete the work in accordance with the agreed specification. Such materials may include, but are not limited to, photographs, written copy, logos and other printed materials. Such materials remain the copyright of the copyright holder. The client will obtain all the necessary permissions and authorities in respect of the use of all copy, graphic images, images of persons, logos, names and trademarks or any other material it supplies. This is to include any and all model release agreements for images of identifiable individuals. PWAR will not undertake any checks on such permissions and authorities which responsibility remains with the client.
10.3 Nothing in this agreement shall restrict the right of PWAR to reproduce, use, disclose, display, exhibit, transmit, perform, create derivative works, trade and distribute any item created or modified under this agreement for any purpose unless specifically agreed otherwise. Further, PWAR shall be free to use any ideas concepts know-how or techniques acquired in undertaking work on your behalf for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products and other items incorporating such information unless specifically agreed otherwise.
10.4 PWAR complies with the requirements of the Data Protection Act relating to personal data.
10.5 PWAR will respect the confidentiality of client data but it is the responsibility of the client to inform PWAR at the start of the agreement of the nature and extent of any confidential data used under this agreement, and to advise of any special precautions or provisions which must be made to maintain this confidentiality both during and after the agreement. This includes any restriction on the retention of files, use of material for publicity, and reuse of material for other purposes. See also 3.4 above.
11. General
11.1 If any of these terms and conditions (or part of them) is void or unenforceable, it is taken to be removed and no longer forms part of the Agreement between us. The remaining terms and conditions remain in full force and effect.
11.2 Written communications between us may take the form of letters, formal documents, faxes or emails.
11.3 PWAR may require a personal guarantee of payment from the director of a company in cases where files/artwork are required before payment.