Peach Loves Digital General Terms & Conditions
Agreement for the Supply of Digital Services BETWEEN (a) Peach Loves Digital LIMITED, a company incorporated in England and Wales with Company Number 13303937 whose registered office is at Unit 81 Basepoint Enterprise Centre, Anderson’s Road, Southampton, Hampshire, SO14 5FF (“Peach”); and (b) the Customer whose name and address is set out on the Order. Peach and the Customer are individually referred to as a “Party” and collectively as the “Parties”. This Agreement comprises (i) the General Contract Clauses (“GCC”) which are general clauses that apply to all contracts between Peach and the Customer, (ii) the Project Proposal (“PP”) and the services and work product to be provided to the Customer (“Deliverables”) which are clauses specific to each Service provided by Peach to the Customer. The Order and the GCC, read in conjunction with the other documents listed therein, are complete documents expressing all the rights and obligations of the Parties. This Agreement shall become effective on the date on which it is accepted by an authorised representative of Peach (“Effective Date”) following receipt of the Customers Order.
General Contract Clauses
Agreement means the Project Proposal, these Terms and Conditions and the Customer’s Order and any other attached documents. Accepted or Acceptance means the fully informed acceptance by Peach of an order from the Customer to provide Services. Charges mean the charges payable by the Customer for Services as set out in the Order and/or this Agreement. Customer Content means all materials, writing, images or other creative content provided by the Customer used in preparing or creating the Deliverables. Deliverables mean the services and work product specified in the Project Proposal to be delivered by Peach to the Customer. Designer Tools means all design tools developed and/or used by Peach in performing the Services, including pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements. Final Deliverables means the final versions of Deliverables provided by Peach and accepted by the Customer. Order means an offer or order submitted by a customer in response to a Quotation that accurately reflects the Quotation and that is Accepted. Project means the scope and purpose of the Customer’s identified usage of the work product as described in the Project Proposal. Project Proposal means the Services set out in Appendix 1. Services mean all services and the work product to be provided to the Customer by Peach as described and otherwise further defined in the Project Proposal. Third-Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
- PEACH SERVICES: 1.1 Peach shall perform the services listed the Scope of Work according to the Work Plan and Milestones schedule.
- PAYMENT: 2.1 The Customer agrees to pay to Peach the fees listed in the Order without any deduction, plus VAT at the applicable rate. 2.2 Prices in the Order includes only Peach fees. Any other costs, including hosting, art licensing and photography, will be billed to the Customer in addition. 2.3 Peach will host the Final Deliverables on its web space while the Project is under construction. 2.4 If the Final Deliverables are not completed by the completion date listed in the Project Proposal, and the delay is not caused by Peach, the Customer agrees to pay to Peach £149 per month for hosting until the Final Deliverables are moved to the Customer’s server. 2.5 Payment is due monthly via direct debit. 2.6 All invoices are payable within 15 days of receipt. Invoices will include any expenses and additional costs as separate items. 2.7 Peach may withhold delivery and transfer of ownership of any current work if invoices are overdue or not paid in full. 2.8 All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned on full payment, including all outstanding additional costs, expenses or any other charges.
- CHANGES TO PROJECT SCOPE: 3.1 If the Customer wants to change the Scope of Work after acceptance of this Agreement, the Customer shall send Peach a written Change Order describing the requested changes in detail. 3.2 Designer will evaluate each Change Order at its standard rate and charges. 3.3 Within 5 days of receiving a Change Order, Peach will respond with a statement proposing availability, additional fees, changes to delivery dates, and any modification to the Terms and Conditions. 3.4 If the Customer requests are at or near 60% of the time required to produce the Deliverables, or the value of the Scope of Services, Peach shall be entitled to submit a new and separate Proposal to the Customer for written approval. Peach will not begin work on the revised services until it receives a revised Order from the Customer. 3.5 If the Customer requests are not Major Changes, the Customer will be billed on a time and materials basis at Peach’s hourly rate of £85 per hour. 3.6 Such charges shall be in addition to all other amounts payable under this Agreement, despite any previously agreed maximum budget, contract price or final price previously identified. 3.7 Peach may extend or modify any delivery schedule or deadlines in the Agreement as may be required by such changes. 3.8 The Customer will have 15 days to respond in writing accepting or rejecting the new proposal. If the Customer rejects the proposal, PEACH will not be obligated to perform any services beyond those in the original Agreement.
- DELAYS: 4.1 Peach shall use all reasonable efforts to meet the Work Plan and Milestones delivery schedule. 4.2 Peach may extend the due date for any Deliverable by giving written notice to the Customer. 4.3 The total of all extensions shall not exceed 15 days. 4.4 The Customer shall use all reasonable efforts to provide needed information, materials and approvals in the agreed timescale as set out in Appendix 2. 4.5 Any delay by the Customer will result in a day-for-day extension of the due date for all Deliverables. 4.6 Any delay caused be conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day-for-day extension of any performance due. 4.7 Each party shall use reasonable efforts to notify the other party, in writing, of a delay. 4.8 Conditions beyond the reasonable control of the parties include, but are not limited to, natural disasters, acts of government after the date of agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war, terrorism and epidemics.
- EVALUATION AND ACCEPTANCE: 5.1 Peach will test and correct Deliverables using commercially reasonable efforts before providing Deliverables to the Customer. 5.2 The Customer shall, within 15 business days after receiving each Deliverable, notify Peach in writing of any failure to comply with the specification of the Project Proposal or of any other objections, corrections or changes required. 5.3 Peach will, within 15 business days of receiving the Customers notification, correct and submit a revised Deliverable to the Customer. 5.4 The Customer shall, within 5 business days of receiving a revised Deliverable, either approve the corrected version or make further changes. 5.5 If after 7 corrections by Peach, the Customer finds the Deliverables are not acceptable, the Customer may terminate this agreement subject to the termination clauses of this Agreement. 5.6 If the Customer fails to provide approval or comments during any approval period, those Deliverables will be considered approved and accepted. 5.7 All objections, corrections and changes shall be subject to the terms and conditions of this Agreement.
- CUSTOMER RESPONSIBILITIES: 6.1 The Customer acknowledges that it is responsible for performing the following in a reasonable and timely manner: 6.2 Provide the Customer Content in a form suitable for use in the Deliverables without further preparation by PEACH, unless otherwise specified in the Project Proposal; 6.3 Proofread all Deliverables. 6.4 Peach may charge the Customer for correcting errors after the acceptance of any Deliverable by the Customer. 6.5 Inform Peach of any inconsistencies or required development changes 10 days before scheduled launch dates. The Customer shall inform Peach of any further development requirements before requesting a development is launched as live. The customer requesting development to be live provides Peach with authority that all work is approved. The customer has seven days to notify Peach of any further development requirements once live. After seven days Peach shall treat developments as final complete and approved.
- ACCREDITATION AND PROMOTION: 7.1 Peach will be entitled to place accreditation, as a hyperlink or otherwise, in the form, size and location as incorporated by Peach in the Deliverables on each page of the Final Deliverables. 7.2 Peach retains the right to reproduce, publish and display the Deliverables in Peach portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. 7.3 Either party, subject to the other’s reasonable approval, may describe its role in the Project on its website and in other promotional and marketing materials, and, if not expressly objected to, include a link to the other party’s website.
- CONFIDENTIAL INFORMATION: 8.1 The Customer’s "Confidential Information" includes information that Peach should reasonably believe to be confidential. 8.2 Peach "Confidential Information" includes the source code of any Peach Tools. 8.3 All material considered confidential by either party shall be designated as confidential. 8.4 Confidential Information shall not be disclosed to third parties and shall only used as needed to perform this Agreement. 8.5 Confidential Information shall not include any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure.
- RELATIONSHIP OF THE PARTIES: 9.1 Peach is an independent contractor and shall determine, in its sole discretion, the manner and means by which the Services are accomplished. 9.2 No agency, partnership or joint venture is intended or created by this Agreement. 9.3 Neither party is authorised to act as an agent or bind the other party except as expressly stated in this Agreement. 9.4 The work product or Deliverables prepared by Peach shall not be deemed a work for hire as defined under Copyright Law. 9.5 All rights granted to the Customer are contractual in nature and are expressly defined by this Agreement. 9.6 Peach may at its sole discretion use third parties as independent contractors in connection with the Services. Peach shall remain fully responsible for their compliance with this Agreement. 9.7 This Agreement does not create an exclusive relationship between the parties. The Customer is free to engage others to perform services of the same or similar nature to those provided by Peach. 9.8 Peach shall be entitled to offer and provide design services to others, solicit other Customers and otherwise advertise the services offered by Peach.
- REPRESENTATIONS AND WARRANTIES: 10.1 the Customer represents and warrants to Peach that: (a) To the best of the Customer’s knowledge, use of the Customer Content does not infringe the rights of any third party; (b) the Customer shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials; (c) the Customer will obtain all necessary and appropriate rights and licenses to grant license to Peach to use Third Party Materials. 10.2 Peach represents and warrants to the Customer that: (a) Peach will provide the Services identified in the Agreement in a professional and workmanlike manner; (b) Peach shall secure all necessary rights, title, and interest in and to the Final Deliverables, including Designer Tools, sufficient for Peach to grant the intellectual property rights provided in this Agreement; (c) to the best of Peach’s knowledge, the Deliverables will not violate the rights of any third parties. 10.2 If the Customer or a third party modifies the Deliverables or uses the Deliverables outside of the scope or purpose of this Agreement, all representations and warranties of Peach shall be void. 10.3 Except for the express representations and warranties stated in this agreement, Peach gives no warranties whatsoever. 10.4 Peach explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.
- INDEMNITY AND LIABILITY: 11.1 The Customer will indemnify Peach from any and all damages, liabilities, costs, losses, expenses or fees arising out of any claim, demand, or action by a third party arising out of any breach of the Customer’s responsibilities or obligations, representations or warranties under this Agreement. 11.2 Peach shall promptly notify the Customer in writing of any third party claim or suit. 11.3 The Customer shall have the right to fully control the defence and any settlement of such claim or suit. 11.4 The services and the work product of Peach are sold “as is.” in all circumstances, the maximum liability of Peach, its directors, officers, employees, design agents and affiliates (“designer parties”), to the customer for damages for any and all causes whatsoever, and customer’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the fees paid to Peach by the Customer for the project. 11.5 Peach accepts no liability for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by peach, even if Peach has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
- TERM AND TERMINATION: 12.1 This agreement shall begin when Peach accepts the Customer’s Order and shall continue until all Services are complete and delivered, or until the Agreement is terminated. 12.2 Either party may terminate this agreement at any time prior to delivery of the Deliverables, on 30 days prior to written notice if the other party breaches any of its material responsibilities or obligations under this Agreement and fails to cure that breach during that 30 day period. 12.3 Either party may terminate this agreement at any time if the other party ceases to conduct business in its normal course; makes an assignment for the benefit of creditors; is liquidated or otherwise dissolved; becomes insolvent; files a petition in bankruptcy; or a receiver, trustee, or custodian is appointed for it. 12.4 This agreement may be terminated by the mutual agreement of the parties. 12.5 In the event of termination, the Customer shall pay Peach for the Services performed up to the date of termination in the amount of a prorated portion of the fees due. In addition, the Customer shall pay all Expenses, Fees, and Additional Costs incurred up to the date of termination. 12.6 If the Customer terminates then subject to clause 12.5 above, Peach will grant to the Customer right and title as provided by this Agreement with respect to those Deliverables provided and accepted by the Customer as of the date of termination. 12.7 On expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party; and (b) all rights and obligations regarding Confidential Information shall survive.
- RIGHTS TO FINAL ART: 13.1 Peach grants to the Customer a non-exclusive, perpetual and worldwide license to use and display the Deliverables and Final Deliverables in accordance with this Agreement. 13.2 The rights granted to the Customer are for use of the Final Deliverables in its original form only. 13.3 The Customer may not change, create derivative works or extract portions of the Final Deliverables. 13.4 Additional fees shall be payable by the Customer for the use of any Deliverables by the Customer outside the scope of the license granted above. 13.5 Peach shall be entitled to an additional fee equal to the final Project fee unless otherwise agreed in writing by both parties. 13.6 Until such an additional fee is paid, the Customer shall not use any of the Deliverables outside the scope of the license granted above.
- RIGHTS TO DELIVERABLES OTHER THAN FINAL ART: 14.1 The Customer Content is the exclusive property of the Customer. 14.2 The Customer grants to Peach a non-exclusive, non-transferable license to use, reproduce, modify, display and publish the Customer Content solely in connection with the performance of the Services and limited promotional uses of the Deliverables as authorised in this Agreement. 14.3 Peach will retain all rights in and to all Preliminary Works and the Customer shall return all Preliminary Works to Peach within thirty (30) days of completion of the Services. 14.4 All Peach Tools are and shall remain the exclusive property of Peach. 14.5 Peach grants the Customer a nonexclusive, nontransferable, perpetual, worldwide license to use the Peach Tools solely to the extent necessary with the Final Deliverables for the Project.
- SUPPORT SERVICES: 15.1 During the first thirty (30) days following expiration of this Agreement, Peach shall provide up to 7 hours of Support Services at no additional cost to the Customer. 15.2 Support Services means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deficiencies. 15.3 Requests for additional support will be billed on a time and materials basis at Peach standard rate. 15.4 After the Warranty Period expires and at the Customer’s option, Peach will continue to provide Support Services for a monthly fee of £85 per hour. 15.5 The Support Services in the Warranty Period and the Maintenance Period do not include enhancements to the Project or other services outside the scope of the Proposal.
- ENHANCEMENTS AND ALTERATIONS: 16.1 The Customer may request that Peach develop enhancements or make alterations to the Deliverables by submitting a new Order. 16.2 Alteration of any Deliverable is prohibited without the express permission of Peach. 16.3 Unauthorised alterations shall constitute additional use and will be billed accordingly.
- DISPUTE RESOLUTION: 17.1 The Parties agree to attempt to resolve any dispute by negotiation between the parties. 17.2 If the Parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties.
- GENERAL: 18.1 Modifications to this Agreement must be in writing and signed by both parties. 18.2 Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach. 18.3 All notices under this Agreement shall be given in writing either by: (a) Fax or Email, with return confirmation of receipt; (b) Certified or Registered post, with return receipt requested. (c) Notice will be effective when received, or in the case of email or fax, on confirmation of receipt. 18.4 Rights or obligations under this Agreement shall not be transferred, assigned or encumbered without the prior written consent of the other party. 18.5 This Agreement shall be governed by the law of England. 18.6 If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. Where possible the invalid or unenforceable provision shall be interpreted in such manner as to be effective and valid under applicable law. 18.7 Headings and numbering used in this Agreement are for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of this Agreement, and shall not have any legal effect. 18.8 This Agreement is the entire understanding of the parties and supersedes all prior understandings and documents relating to the subject matter of this Agreement.