Terms of service.
TERMS & CONDITIONS - ONLINE
AGREED TERMS
Your attention is particularly drawn to the provisions of clause 13 (Limitation of liability).
About us
1.1 Company details. Arch 35 Marketing Ltd, a company incorporated under the Companies Acts with registered number SC512478 and having its registered office at 35 South College Street, Aberdeen, Scotland, AB11 6LE.
1.2 Contacting us. To contact us, telephone our customer service team at TBC or email us at enquiries@arch35.com. How to give us formal notice of any matter under the Contract is set out in clause 17.2.
Our contract with you
2.1 Our contract. These terms and conditions (Terms) apply to the order by you and supply of Services by us to you (Contract). They apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 Our proposal. We will send you a proposal which outlines the key commercial terms of our arrangement with you (for example, length of contract, fees, notice periods) (Proposal). The latest Proposal that we have sent you, prior to the Contract commencing, forms part of our Contract with you.
2.3 Entire agreement. The Contract (incorporating the Proposal) is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
2.4 Language. These Terms and the Contract are made only in the English language.
2.5 Your copy. You should print off a copy of these Terms or save them to your computer for future reference.
2.6 Term. Where the Proposal does not contain a specific length of contract, then the Contract shall be for one year and shall automatically renew on the expiry of that term each year unless three months prior written notice is given by you.
Our services
3.1 Descriptions and illustrations. Any descriptions or illustrations on our site are published for the sole purpose of giving an approximate idea of the services described in them. They will not form part of the Contract or have any contractual force.
3.2 Compliance with specification. Subject to our right to amend the specification (see clause 5.3) we will supply the Services to you in accordance with the specification for the Services appearing on our website at the date of your order in all material respects.
3.3 Changes to specification. We reserve the right to amend the specification and/or Proposal of the Services if required by any applicable statutory or regulatory requirement or if the amendment will not materially affect the nature or quality of the Services.
3.4 Reasonable care and skill. We warrant to you that the Services will be provided using reasonable care and skill.
3.5 Time for performance. We will use all reasonable endeavours to meet any performance dates specified in the Order Confirmation, but any such dates are estimates only and failure to perform the Services by such dates will not give you the right to terminate the Contract.
Your obligations
4.1 It is your responsibility to ensure that:
(a) the terms of your order are complete and accurate;
(b) you cooperate with us in all matters relating to the Services;
(c) you provide us, our employees, agents, consultants and subcontractors, with access to your premises, office accommodation and other facilities as we may reasonably require;
(d)you provide us with such information and materials we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e)(where applicable) you prepare your premises for the supply of the Services;
(f) you obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(g) you comply with all applicable laws, including health and safety laws; and
(h) you keep all of our materials, equipment, documents and other property (Our Materials) at your premises in safe custody at your own risk, maintain Our Materials in good condition until returned to us, and not dispose of or use Our Materials other than in accordance with our written instructions or authorisation.4.2 If our ability to perform the Services is prevented or delayed by any failure by you to fulfil any obligation listed in clause 6.1 (Your Default):
(a)we will be entitled to suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services. In certain circumstances Your Default may entitle us to terminate the Contract under clause 14 (Termination);
(b)we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Services; and
(c)it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.
Services in UK only
5.1 Unfortunately, we are unable to perform the Services at addresses outside the UK.
5.2 You may place an order for the Services from an address outside the UK, but the order must be for performance of the Services to an address in the UK.
Charges
6.1 In consideration of us providing the Services you must pay our charges (Charges) in accordance with this clause 8.
In consideration of us providing the Services you must pay our charges (Charges) in accordance with this clause 8.
6.2 The Charges are the prices outlined in our mutually signed contract.
6.3 If you wish to change the scope of the Services after the contract is signed and executed , and we agree to such change, we will modify the contract accordingly via a written contract variation.
6.4 Our Charges may change from time to time and we reserve the right to increase our Charges on an annual basis in line with the retail prices index (RPI) without asking for your consent. Where Charges are to be increased over and above the RPI we will contact you directly.
6.5 Our Charges are exclusive of VAT. Where VAT is payable in respect of some or all of the Services you must pay us such additional amounts in respect of VAT, at the applicable rate, at the same time as you pay the Charges.
How to pay
7.1 Payment for the Services is in advance. We will take your first payment upon acceptance of your order and will take subsequent payments monthly in advance.
7.2 You can pay for the Services using a debit card or credit card. We typically use a third party online payment processing solution to collect payments, such as GoCardless. By accepting these terms you agree to make payment to us via such a third party online payment processing solution.
7.3 Notwithstanding clause 9.2, we may arrange with you for Payment for the Services to be taken by direct debit. Your designated bank account will be charged automatically each month or as we agree with you.
7.4 We will send you an electronic invoice within seven days of the beginning of the month following payment. For any failed or cancelled payments, a £20 administration fee will be levied.
7.5 If you fail to make a payment under the Contract by the due date, then, without limiting our remedies under clause 14 (Termination), you will have to pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.5 will accrue each day at 4% a year above the Bank of Scotland's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
7.6 You shall each pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
Intellectual property rights
8.1 All intellectual property rights in or arising out of or in connection with the Services (other than intellectual property rights in any materials provided by you) will be owned by us.
8.2 You agree to grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you to us for the term of the Contract for the purpose of providing the Services to you.
How we may use your personal information
9.1 We will use any personal information you provide to us to:
(a)provide the Services;
(b) process your payment for the Services; and
(c) inform you about similar products or services that we provide, but you may stop receiving these at any time by contacting us.
9.2 We will process your personal information in accordance with our privacy policy (available to view at: www.esconesolutions.com/privacy-policy/), the terms of which are incorporated into this Contract.
Limitation of liability: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
10.1 We have obtained insurance cover in respect of our own legal liability for individual claims not exceeding £5,000,000 per claim. The limits and exclusions in this clause reflect the insurance cover we have been able to arrange and you are responsible for making your own arrangements for the insurance of any excess loss.
10.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
10.3 Subject to clause 12.2, we will not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) any indirect or consequential loss.
10.4 Subject to clause 12.2, our total liability to you arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to lower of either: (i) 50% of the total Charges paid under the Contract for the twelve month immediately preceding the event that gave rise to the alleged liability; or (ii) Ten Thousand Pounds (£10,000) Sterling.
10.5 We have given commitments as to compliance of the Services with the relevant specification in clause 5.2. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
10.6 Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of the event having occurred and shall expire three months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
10.7 This clause 12 will survive termination of the Contract.
Confidentiality
11.1 We each undertake that we will not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning one another's business, affairs, customers, clients or suppliers, except as permitted by clause 13.2.
11.2 We each may disclose the other's confidential information:
(a) to such of our respective employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising our respective rights or carrying out our respective obligations under the Contract. We will each ensure that such employees, officers, representatives, subcontractors or advisers comply with this clause 13; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 Each of us may only use the other's confidential information for the purpose of fulfilling our respective obligations under the Contract.
Termination, consequences of termination and survival
12.1 Termination. Without limiting any of our other rights, we may suspend the performance of the Services, or terminate the Contract with immediate effect by giving written notice to you if:
(a) you commit a material breach of any term of the Contract and (if such a breach is remediable) fail to remedy that breach within 20 days of you being notified in writing to do so;
(b) you fail to pay any amount due under the Contract on the due date for payment;
(c) you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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 your 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;
(d) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or
(e) your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy.
12.2 Consequences of termination
(a)On termination of the Contract you must return all of Our Materials and any deliverables specified in your order which have not been fully paid for. If you fail to do so, then we may enter your premises and take possession of them. Until they have been returned, you will be solely responsible for their safe keeping and must not use them for any purpose unconnected with the Contract.
(b) Termination of the Contract will not affect your or our rights and remedies that have accrued as at termination.
12.3 Survival. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
Events outside our control
13.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control (Event Outside Our Control).
13.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:
(a) we will contact you as soon as reasonably possible to notify you; and
(b) our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will arrange a new date for performance of the Services with you after the Event Outside Our Control is over.
13.3 You may cancel the Contract affected by an Event Outside Our Control which has continued for more than 60 days. To cancel please contact us. If you opt to cancel we will refund the price you have paid, less the charges reasonably and actually incurred by us in performing the Services up to the date of the occurrence of the Event Outside Our Control.
Non-solicitation
You must not attempt to procure services that are competitive with the Services from any of our directors, employees or consultants, whether as an employee or on a freelance basis, during the period that we are providing the Services to you and for a period of twelve months following termination of the Contract.
Communications between us
15.1 When we refer to "in writing" in these Terms, this includes email.
15.2 Any notice or other communication given by one of us to the other under or in connection with the Contract must be in writing and be delivered personally, sent by pre-paid first class post or other next working day delivery service, or email.
15.3 A notice or other communication is deemed to have been received:
(a) if delivered personally, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
(c) if sent by email, at 9.00 am the next working day after transmission.
15.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
15.5 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
Contract
16.1 Assignment and transfer
(a)We may assign or transfer our rights and obligations under the Contract to another entity.
(b)You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.
16.2 Variation. Any variation of the Contract only has effect if it is in writing and signed by you and us (or our respective authorised representatives).
16.3 Waiver. If we do not insist that you perform any of your obligations under the Contract, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
16.4 Severance. Each paragraph of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
16.5 Third party rights. The Contract is between you and us. No other person has any rights to enforce any of its terms.
16.6 Governing law and jurisdiction. The Contract is governed by Scots law and we each irrevocably agree to submit all disputes arising out of or in connection with the Contract to the exclusive jurisdiction of the Scottish courts.