‘Coldlight Creative’ means Coldlight Creative Limited whose registered office is at 2nd Floor, 16 Cook Street, Liverpool, Merseyside, L2 9RF (registered company number 7792834).
‘Client’ means the client, or customer as set out in the Service Agreement.
‘Price’ means the price as set out in the Service Agreement.
‘Service Agreement’ means any agreement between Coldlight Creative and the Client.
‘Services’ means the services as set out in the Service Agreement.
‘Supplier’ means a party other than the Client contracting with Coldlight Creative including without limitation freelancers, consultants and associates.
‘Supplier Agreement’ means an agreement between the Supplier and Coldlight Creative.
‘Terms and Conditions’ means these terms and conditions.
Application of Terms and Conditions
These Terms and Conditions shall apply to all contracts for the provision of Services by Coldlight Creative to the Client and all agreements between the Supplier and Coldlight Creative to the exclusion of all other terms and conditions including any terms or conditions which the Client or Supplier may purport to apply under any agreement, purchase order, confirmation of order or similar document. No conduct by Coldlight Creative shall be deemed to constitute acceptance of any terms and conditions put forward by the Client or the Supplier. If any terms are provided by any other party then Coldlight Creative’s Terms and Conditions shall be deemed to be prior or subsequent to such third party terms to the benefit of Coldlight Creative in that these Terms and conditions shall take precedence.
All orders for Services shall be deemed to be an offer by the Client to purchase the Services pursuant to these Terms and Conditions. Acceptance of the Services or the Client’s signature upon the Service Agreement shall be deemed conclusive evidence of the Client’s acceptance of these Terms and Conditions. Coldlight Creative may choose to accept the services offered by the Supplier. In signing the Supplier Agreement and/or supplying its services to or for Coldlight Creative, the Supplier accepts these Terms and Conditions.
Any variation to these Terms and Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by an authorised officer of Coldlight Creative.
Any offer to purchase any Services or supply Supplier services made orally must be confirmed in writing.
Price and payment
The Price for any Coldlight Creative Services are subject to change and unless otherwise stated all prices quoted are exclusive of VAT. The Price shall be subject to variation by Coldlight Creative in the event of an increase after Coldlight Creative acceptance of an order due to a rise in the cost to Coldlight Creative in providing the Services. Coldlight Creative will provide timely notice to the Client of any such increase. To the extent the Services have not been performed (but not otherwise), if the Client following consultation with Coldlight Creative does not accept the increase and Coldlight Creative does not waive it, the Client may cancel the Services by written notice given within 5 working days of notice of increase provided that Client indemnifies Coldlight Creative in full against all costs, charges and expenses incurred by Coldlight Creative prior to or as a result of cancellation.
If after acceptance of an order the Client requests additional work to be completed or requires alterations to the Services which results in additional work Coldlight Creative shall endeavour to provide the Client with an estimate of the additional costs and shall carry out this additional work at the agreed rate.
Client acknowledges that additional work requested following Client approval in writing or otherwise of proofs, artwork, designs or any other work submitted by Coldlight Creative shall incur further costs to be set out by Coldlight Creative at a minimum cost of the hourly rate that is the current standard rate of Coldlight Creative at the time of the request, except where expressly agreed in writing.
Disbursement costs such as the costs of photographers, printers, advertisements, press cutting services, distribution, hosting and other third party costs may be requested to be paid to Coldlight
Creative by the Client or Supplier where applicable prior to Coldlight Creative entering into an agreement with such third parties on behalf of the Client.
Expenses incurred by Coldlight Creative shall be agreed with the Client in advance of incurring the cost and shall be recharged to the Client. The Supplier shall provide Coldlight Creative with a valid invoice, payment on Coldlight Creative’s terms.
Payment of the Price and VAT where applicable shall be due on or before the 30th day following the date set out on the Coldlight Creative invoice. Payment of disbursements shall be due immediately.
Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 4% above the Nat West’s base rate from time to time in force and shall accrue at such a rate after as well as before any judgment until payment is received by Coldlight Creative. Coldlight Creative shall further have if it so decides the right to use the provisions under the Late Payment of Commercial Debts (Interest) Act 1998 and related regulations.
The Client shall not be entitled to withhold payment of any amount payable to Coldlight Creative by reason of any dispute or claim by the Client and in the case of any part delivery of the Services the Client shall remain liable to pay the full price of all other Services delivered or available for delivery.
The Client and/or the Supplier shall have no right of set off, statutory or otherwise.
The Client (or the Supplier where applicable) shall reimburse to Coldlight Creative immediately the entire cost of representing any cheque or other instrument delivered to it in payment of any sum due by the Client.
Any failure to pay on the due date will represent a breach of a contract condition entitling Coldlight Creative to rescind the contract for breach of condition and/or to claim damages.
Coldlight Creative shall have the right to withhold payments by reason of dispute and the right to set off in relation to all sums owing.
The Client acknowledges that Coldlight Creative retains title to any products, software, intellectual property or other materials provided under the Service Agreement until such time as payment has been received in full.
Unless agreed otherwise in writing, payment terms by the Client for Coldlight Creative Services shall be as follows:
30% of the Price on signature of the Service Agreement;
30% of the Price on delivery of proofs for approval; and
40% of the Price on acceptance of the completed Services.
Warranties and Undertakings
The Client undertakes not to solicit or engage the services of any employee, officer, contractor or associate of Coldlight Creative unless not doing so would be held to be an unlawful restraint of trade.
The Supplier shall not work directly with a client or customer of Coldlight Creative to which the Supplier has provided services either directly or indirectly via Coldlight Creative and the Supplier shall refer immediately to Coldlight Creative any potential offers of work or contracts received by the Supplier from the Client.
Unless otherwise directed by Coldlight Creative, the Supplier shall provide its services to Coldlight Creative Clients under Coldlight Creative brand and name and undertakes not to bring Coldlight Creative’s reputation, goodwill and name into disrepute.
Quality and Liability
Coldlight Creative may from time to time make changes in the specification of the Services which are required to comply with any applicable safety or statutory requirements or for the purposes of a commercial reasoning by Coldlight Creative or which do not materially affect the quality or fitness of the Services.
The Client and the Supplier warrant that they are entitled to provide Coldlight Creative with all information and data and that they shall indemnify and hold harmless Coldlight Creative from any claims for infringement of the information or data, breaches of confidentiality or failure to comply with any data protection laws brought by any third parties.
Where the Services include the processing of data as defined in the Data Protection Act 1998 (the ‘Act’) Coldlight Creative acting as a processor shall use reasonable endeavours to comply with the Act and the Client (or the Supplier where applicable) shall be responsible for the delivery of any agreement required by the Act and further warrant that they shall be the ‘data controller’ as defined in the Act.
Coldlight Creative shall not be liable for any inaccuracies included in any of the Services where the Client has had an opportunity to review the work and has confirmed its accuracy in writing or otherwise. Any alterations following approval shall incur further costs to be set out by Coldlight Creative at the agreed rate.
The Client and/or the Supplier shall fully indemnify and keep indemnified Coldlight Creative against loss of income caused by any third party sub-contractor, equivalent or similar body.
The Client and/or the Supplier shall fully indemnify and keep indemnified Coldlight Creative against any and all loss, damage, costs, claims, expenses and other liabilities suffered or incurred by Coldlight Creative arising from or in connection with the breach of any of its obligations under these Terms and Conditions, Service Agreement or other agreement.
Other than those set out herein, all warranties and conditions whether implied by statute or otherwise are excluded from these Terms and Conditions by Coldlight Creative only PROVIDED THAT nothing in these Terms and Conditions shall restrict or exclude liability for death or personal injury caused by the negligence of Coldlight Creative.
Coldlight Creative shall not be liable for any consequential loss or indirect loss suffered by the Client or the Supplier or any customer of or purchaser from the Client or Supplier as to which the Client and the Supplier shall hold Coldlight Creative fully and effectually indemnified whether this loss arises from breach of a duty in contract or tort or in any other way (including loss arising from Coldlight Creative’s negligence). Consequential or indirect loss will include but is not limited to loss of profits, loss of contracts, loss of reputation, loss of business, damage to property of the Client or any third party.
Coldlight Creative shall not be liable for any costs, losses or damages incurred due to the actions or omissions of any third party.
The Client acknowledges and accepts that it is not the responsibility of Coldlight Creative to renew any domain names or to inform the Client of or advise the Client to dates of renewals and the Client undertakes to ensure any such renewals are the sole responsibility of the Client.
Due to the nature of search engines Coldlight Creative does not guarantee search engine ranking for the Client’s website.
Coldlight Creative shall not be liable for the acts or omissions of third parties providing services directly to the Client including but not limited to persons or companies supplying printed materials to the Client.
Coldlight Creative does not warrant that the running of any website or the provision of hosting services shall be uninterrupted or software, media or interactive systems created for or used by the Client will be error free and the Client agrees that Coldlight Creative shall not be liable for any losses incurred by the Client due to such errors, interruptions or hacking.
The Client accepts that Coldlight Creative cannot give any guarantees that any websites or applications created will be compatible with or look the same or operate the same with any future technology including without limitation browsers, platform or hardware.
The Client agrees that any licenses that require renewal or further licensing fees to be paid shall be the sole responsibility of the Client.
The Client undertakes to act as the moderator of any content uploaded by any user of the site and further undertakes to have the necessary acceptable use policy and agrees that Coldlight Creative shall not be liable for any losses, damages incurred by or claims brought against the Client due to content uploaded by any third party.
The Client warrants that it has the right to supply the content for any website or other medium and shall indemnify Coldlight Creative for any claim of infringement or any claim that the content is defamatory, obscene, blasphemous or otherwise actionable under any regulations of any jurisdiction or breaches any advertising standards codes or regulations.
Coldlight Creative’s liability shall be limited to £50,000 per claim.
These Terms and Conditions shall not affect the statutory rights available to the Client or the Supplier where applicable.
The Client and/or the Supplier shall insure and keep insured any property provided by Coldlight Creative or that is on the Clients and/or Supplier’s property or under their control to the full price against ‘all risks’ to the reasonable satisfaction of Coldlight Creative until the date that property is returned and shall whenever requested by Coldlight Creative produce a copy of the policy of insurance. At no time shall any rights in the property pass to the Client or Supplier unless otherwise stated in writing by Coldlight Creative.
Where the Client or Supplier is incorporated and is unable or unwilling to pay the Fees or part of the Fees or becomes insolvent, enters into liquidation or administration or ceases to trade then it is hereby agreed and undertaken that each and every director shall be personally liable for any monies owed to Coldlight Creative by their respective Client or Supplier.
The Client acknowledges that Coldlight Creative is not responsible for the correct running of any website created by Coldlight Creative when that website is hosted by a third party. Coldlight Creative is not responsible for any faults occurring on websites or other Services following amendments or additions having been made by third parties.
The Client and/or the Supplier agree and acknowledge that all claims arising from services provided by a director of Coldlight Creative previously trading as Coldlight including services under agreements that predate these Terms and Conditions shall be brought against Coldlight Creative exclusively and not against the directors of Coldlight creative as individuals.
Insolvency & Termination
Without prejudice to any other claim, right or remedy (including with respect to late payment) which it may have, make or exercise against the other party whether under the Service Agreement or at law, the Service Agreement may be terminated forthwith by Coldlight Creative giving written notice to the Client or Supplier on the happening of any of the following events:-
(a) if the Client/Supplier commits any breach of any of the terms of the Service Agreement or these Terms and Conditions and any such breach, if capable of remedy, is not remedied within fourteen (14) days of receipt of written notice specifying the breach, provided that if the breach is remedied to the reasonable satisfaction of Coldlight Creative within the said fourteen (14) days, then the notice shall be of no further effect; or
(b) if the Client/Supplier, being a company, is unable to pay its debts (within the meaning of Clause 123(1) of the Insolvency Act 1986), has a receiver or administrator appointed over or in respect of any or all of its assets or undertaking or an order of the court is made or an effective resolution is passed for the winding up of the other party or becomes bankrupt.
Delivery of any Supplier goods or services shall be on the date as agreed between the Supplier and Coldlight Creative and which may be set down in the agreement between Coldlight Creative and the Supplier. Time shall be of the essence. The Supplier shall fully compensate and/or indemnify Coldlight Creative for any losses, costs and damages incurred by Coldlight Creative in any delay in delivering the Supplier products or services.
Risk in any Supplier products shall remain with the Supplier until seven (7) working days following delivery of those products or until where there is a fault in the products the Client or Coldlight Creative notices the fault, such fault is remedied by the Supplier. Title in the Supplier products shall pass to Coldlight Creative on delivery of the products.
Any delivery times provided to the Client shall be approximate as the Services specified may alter or third parties may delay delivery of products or services. Coldlight Creative shall not be liable for any delay in the delivery of the Services or any consequential loss or indirect loss suffered by the Client and time shall not be of the essence.
Coldlight Creative shall not be liable for any variation in the quantity of the products as set out as part of the services up to a maximum variance of fifteen percent (15%). Coldlight Creative shall not be liable for any reasonable commercial variation in colour, shade, font, size or shape in products provided to the Client. The nature of the content (including colours, shades and fonts) is as viewed on the systems and equipment of Coldlight Creative. Coldlight Creative shall not be liable for discrepancies or differences which occur due to the Client’s systems or software.
The Services shall be deemed accepted by the Client following five days of delivery of the Services. Delivery for the purposes of the Client only shall mean when the Services become available to the Client.
The Client acknowledges that unless agreed in writing Coldlight Creative does not keep back-up copies of websites unless the website is being hosted by Coldlight Creative. Following the expiry of a hosting period paid for by the Client to Coldlight Creative, Coldlight Creative shall keep a copy of the website for a maximum of 14 days following the end of the hosting period.
Coldlight Creative may cancel any agreement with the Client or Supplier at any time before the Services are delivered or following delivery by giving written notice. On giving such notice Coldlight Creative shall within 7 days repay to the Client any sums paid in respect of the relevant Service Agreement subject to costs incurred by Coldlight Creative. Coldlight Creative shall not be liable for any loss or damage whatever arising from such cancellation. No cancellation of the whole or any part of any order by the Client is permitted except where expressly agreed in writing by an authorised officer of Coldlight Creative and on terms which will indemnify Coldlight Creative against any loss incurred.
All intellectual property rights resulting from the performance of the Service Agreement (including but not limited to software, branding, logos and artwork) are the property of Coldlight Creative. Coldlight Creative shall transfer to the Client in the form of a non-exclusive licence unless otherwise agreed in writing by Coldlight Creative, the intellectual property rights in the Services where applicable but always subject to receipt by Coldlight Creative of the Price in full by Coldlight Creative and cleared through its bank account. This licence may be revoked if the Client breaches any of the terms of this agreement.
Third party software shall be supplied under the standard licence terms provided by such third parties, copies of which shall be provided to the Client, and the Client agrees to be bound by such licence terms. Coldlight Creative does not warrant that third party software will be error free. The Client indemnifies Coldlight Creative against any and all loss, damage, costs, claims, expenses and other liabilities arising from the malfunction of third party software.
The Client acknowledges and accepts that the intellectual property rights in and to any fonts that are used in any work created by Coldlight Creative may not be owned by Coldlight Creative and use of the fonts maybe subject to further licensing fees that shall be the sole responsibility of the Client.
Unless stated otherwise any work undertaken by the Supplier shall be owned by Coldlight Creative and the intellectual property in that work shall be assigned to Coldlight Creative the consideration from Coldlight Creative being the payment to the Supplier.
The Client grants Coldlight Creative a non-exclusive royalty free licence to use the Client’s intellectual property rights for the purposes of the Services and such licence shall be perpetual for the purposes of Coldlight Creative’s self promotional endeavours only. The Client warrants that all intellectual property supplied by the Client to Coldlight Creative does not infringe any third party rights, and the Client agrees to indemnify and hold harmless Coldlight Creative against any and all claims and other liabilities arising from a breach of this warranty.
The Client undertakes not to reverse engineer, decompile or disassemble any software provided as part of the Services.
Coldlight Creative has the right to include a footer at the end of any website created for the Client by “Coldlight Creative Limited” and hypertext link from the Client website to a website owned and controlled by Coldlight Creative.
Any confidential information about Coldlight Creative, its staff, customers, contractors or officers shall be protected and kept in strict confidence by the Client and the Supplier which must use at least the same degree of precaution and safeguards as it uses to protect its own proprietary information of like importance, but in no case less than reasonable care. The termination or expiry of the Service Agreement or Supplier Agreement shall not relieve the Client or the Supplier of its obligations imposed herein.
The Client and the Supplier acknowledge that damages would not be a sufficient remedy for any threatened or actual breach of these Conditions and that Coldlight Creative will be entitled to other remedies, including but not limited to, injunctive relief and specific performance.
The parties to an agreement under these Terms and Conditions shall not be liable for any delay in performing or failure to perform any of its obligations under this agreement caused by events beyond its reasonable control (‘Force Majeure Event’). However any delay or failure by a sub-contractor or supplier of the Client or Supplier shall not relieve the Client or the Supplier respectively from liability for delay or failure.
The party claiming the Force Majeure Event shall promptly notify the other in writing of the reasons for the delay or stoppage (and the likely duration) and will take all reasonable steps to overcome the delay or stoppage.
The party claiming the Force Majeure Event shall have its performance under this Agreement suspended for the period that the Force Majeure Event continues and the party will have an extension of time for performance which is reasonable and in any event equal to the period of delay or stoppage.
Any costs arising from the delay or stoppage will be borne by the party incurring those costs. Either party may, if the delay or stoppage continues for more than sixty (60) working days, terminate any agreement with immediate effect on giving written notice to the other and neither party shall be liable to the other for such termination. The party claiming the Force Majeure Event will take all necessary steps to bring that event to a close or to find a solution by which the contract may be performed despite the Force Majeure Event.
The parties shall not assign, transfer, purport to assign or transfer any agreement to which these Terms and Conditions apply or the benefit thereof to any other person or body whatsoever unless agreed in writing by Coldlight Creative (not to be unreasonably withheld).
Full and Complete Terms and Conditions
These Terms and Conditions contain the full and complete understanding between the parties and supersedes all prior arrangements and understandings whether written or oral appertaining to the subject matter of these Terms and Conditions and any related documents. The Client and the Supplier acknowledge that no representations or promises not expressly contained in these Terms and Conditions have been made to the Client or the Supplier by Coldlight Creative in any agreement or by any of its servants, agents, employees, members or representatives.
Any notice to be given hereunder shall be in writing and shall be deemed to have been duly given if sent or delivered to the Client, Supplier or Coldlight Creative at their respective address as detailed in the Service Agreement, Supply Agreement or such other address as the parties may from time to time notify the other in writing and shall be deemed to have been served and sent by post 48 hours after posting.
For the avoidance of doubt nothing contained in these Terms and Conditions or the Service Agreement or the Supply Agreement shall confer on any third party any benefit or the right to enforce these Terms and Conditions or the Service Agreement or Supply Agreement except where otherwise agreed in writing by Coldlight Creative.
If any term or provision in the Service Agreement, Supply Agreement or these Terms and Conditions shall in whole or in part be held to any extent to be illegal or unenforceable that term or provision or part shall be deemed to be removed from and not to form part of the Service Agreement, Supply Agreement and/or Terms and Conditions and the enforceability of the remainder shall not be affected.
These Terms and Conditions are subject to the laws of England. All disputes shall be subject to the exclusive jurisdiction of the courts of England.