Skeleton terms and conditions of supply
1.1 In these terms and conditions (“Conditions”), the following words shall have the following meanings unless the context otherwise requires:
a day (other than a Saturday, Sunday or public holiday in England) when banks in London are open for business;
the person, firm or company purchasing the services from Skeleton;
any content and/or materials provided to Skeleton by the client (or its representatives) for incorporation on or in the deliverables;
“Client’s nominated representative”
an individual nominated by the client and authorised to provide instructions and/or approval to Skeleton in relation to the services on the client’s behalf;
any contract between Skeleton and the client for the sale and purchase of the services incorporating these conditions;
the Deliverables to be provided to the client by Skeleton in the course of the provision of the services, as set out in the project specification;
any Client Materials that infringe any applicable laws, regulations or third party rights, including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or breach any third party Intellectual property rights;
“Intellectual property rights”
patents, rights to inventions, copyright and related rights, moral rights, trade marks, trade names and domain names, designs (registered or unregistered), rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software and/or source code, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world, together with all rights of action in relation to the infringement of any of the above;
each applicable milestone or phase for the delivery of the services and/or deliverables,and for the payment by the client of the associated amount, as set out in the project specification;
the client's order for the services (and including the project specification, if applicable), in whatever form communicated to Skeleton;
the price payable for the Services, in accordance with Condition 7.1;
the specification setting out the agreed scope of the services between the client and Skeleton (as contained in or referred to in the order);
any services that Skeleton is to supply to the client pursuant to an order and in accordance with the conditions, including (without limitation) video production services, website design services, website hosting services, graphic design services;
Skeleton Productions Limited (company registration number 05345335) whose registered office is at the Sir Colin Campbell Building, University of Nottingham, Innovation Park, Triumph Road, Nottingham NG7 2TU;
“SP intellectual property”
all Intellectual Property Rights owned by or licensed to Skeleton;
a visitor to the Website;
any and all content or material posted on the website by a visitor; and
any website created by Skeleton for the client in the course of the services.
1.2 A reference to a party includes its personal representatives, successors or permitted assigns.
1.3 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.4 A reference to writing or written includes faxes and e-mails.
1.5 Clause headings do not affect the interpretation of this agreement.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.7 References to including and include(s) shall be deemed to mean respectively including without limitation and include(s) without limitation.
1.8 References to content include any kind of text, information, image, or audio or video material which can be incorporated in a website for access by a visitor to that website.
2 Basis of contract
2.1 These conditions are the only conditions upon which Skeleton is prepared to deal with the client and they shall govern any contract with the client for the sale, purchase and supply of the services to the entire exclusion of any other express or implied conditions.
2.2 These conditions may only be modified by a variation in writing signed on behalf of Skeleton by an authorised representative of Skeleton and no other action on the part of Skeleton (including the supply of any services) shall be construed as an acceptance of any other conditions.
2.3 These conditions (as modified in accordance with condition 2.2) together with the matters referred to in the order and Skeleton’s quotation (if any) and/or acceptance of the client’s order embody the entire agreement of Skeleton and the client in relation to the sale, purchase and supply of the services ordered by the client and supersede any prior promises, statements, representations (save for those made fraudulently) or undertakings of either party in respect thereof.
2.4 No employee, agent or sub-contractor of Skeleton is authorised to make any representations concerning the services unless confirmed by an authorised representative of Skeleton in writing and the client acknowledges that it does not rely on any such representations that are not so confirmed.
2.5 Any samples, drawings, descriptive matter or advertising produced by Skeleton and any descriptions or illustrations contained in any pre-contractual documentation provided by Skeleton are produced for the sole purpose of giving an approximate idea of the services described in such documentation, and shall not form part of the contract or have any contractual force.
2.6 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of order, invoice or other document or information issued by Skeleton shall be subject to correction without any liability on the part of Skeleton.
2.7 Any quotation in whatever form given to the client by Skeleton is given subject to these conditions and does not constitute an offer to sell or supply.
3.1 The signature of an order by the client will constitute an offer by the client to purchase the services in accordance with these conditions. The client is responsible for ensuring that the terms of the order, the project specification, and any other applicable specification included or referred to in such order are complete and accurate.
3.2 For the avoidance of doubt, the client acknowledges that Skeleton shall not, at any time, be obliged to accept an order.
3.3 No contract shall be concluded with the client until Skeleton accepts the offer set out in an order by either:
3.3.1 communicating confirmation and/or acceptance of an order to the client; or
3.3.2 commencing work on any of the Services included in the order.
3.4 Orders for services that have been accepted by Skeleton can only be cancelled by the client with the prior written agreement of Skeleton, and on the condition that the client shall indemnify Skeleton in full against all losses (including, without limitation, loss of profit), damages, costs (including, without limitation, the cost of all labour and materials used) and expenses incurred by Skeleton as a result of such cancellation. In the event that an order is cancelled by the client, any deposit paid or payable by the client pursuant to an order or under condition 8.1 shall be non-returnable.
4 Project Specification
4.1 By signing the order, the client indicates its approval of the project specification as the basis for the provision of the services by Skeleton under the contract. Any changes to the project specification after such time that are requested by the client shall be subject to the prior written approval of Skeleton and may give rise to additional charges.
4.2 The client acknowledges and accepts that the project specification may evolve or require revision in the course of the provision of the services. Accordingly, Skeleton may, at its discretion, make non-material amendments to the project specification and provide the services and/or the deliverables in accordance with such revised project specification, provided that Skeleton keeps the client informed of such changes, and provided that such changes do not adversely affect the overall nature or quality of the services and/or the deliverables.
5.1 Skeleton will use reasonable endeavours to commence the services comprised within an order and related documents within a reasonable time following acceptance of an Ooder in accordance with condition 3.3.
5.2 Skeleton will use reasonable endeavours to confirm to the client, at various stages or milestones in the course of the services, estimated dates for delivery of the elements of the services.
5.3 Any dates quoted for delivery or commencement of the services are non-binding, indicative business estimates only and Skeleton will not be liable to the client for any loss or damage (whether direct, indirect or consequential and howsoever arising) sustained by the client as a result of any delay in delivery of the services. time for delivery or supply of the services shall not be of the essence.
5.4 The client acknowledges that Skeleton’s ability to provide the services is dependent upon the full and timely co-operation of the client (which the client agrees to provide), as well as the accuracy and completeness of the client’s instructions any information, materials or data the client provides to Skeleton.
6.1 Skeleton warrants that the services will be provided with reasonable care and skill.
6.2 Skeleton shall use reasonable endeavours to deliver the deliverables in accordance in all material respects with the project specification.
6.3 The warranty set out in clause 6.2 shall not apply to the extent that any failure of the deliverable to be or perform substantially in accordance with the project specification is caused other fault or omission of the client.
6.4 These Conditions set out the full extent of Skeleton’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
6.5 These Conditions shall apply to any repeated Services performed.
7.1 In respect of any contract with the client to which these conditions apply, the price for the Services to be supplied under that contract will be the price set out in the project specification, or Skeleton’s quotation for the services (or, in the absence of a project specification and a quotation, as set out in Skeleton’s price list applicable at the date on which the services are provided).
7.2 The price for the services may be payable in separate instalments or milestones upon the completion of a milestone, or as otherwise communicated to the client by Skeleton in advance.
7.3 The client acknowledges and accepts that, where a milestone is completed, any additional work or amendments requested in relation to work comprised in such approved milestones shall give rise to an additional charge.
7.4 Skeleton reserves the right, by giving written notice to the client at any time before delivery of the services, to increase the price to reflect any increase in the cost to Skeleton of supplying the services that is due to any factor beyond its reasonable control (such as, without limitation, increases in supplier costs alteration in the cost of the labour, materials or other costs of providing the Services), or any changes in the order or the delivery dates or specification of the Services that are requested by the client or any delay caused by any of the client’s instructions or the client’s failure to give Skeleton adequate information or instructions.
7.5 The Price is exclusive of VAT or any similar applicable taxes, levies or duties.
8.1 The client acknowledges and accepts that a non-returnable deposit or advance payment of the price may be payable to Skeleton prior to the commencement of the services and/or certain elements of the services. The client shall become liable to pay any deposits or advance payments referred to in an order upon acceptance of such order by Skeleton in accordance with condition 3.3.
8.2 The client acknowledges and accepts that, upon completion of each milestone, all sums due payable by the client.
8.3 Skeleton may invoice the client for the price when or at any time after the services have been supplied and/or upon completion of any applicable milestone.
8.4 The client shall pay all invoices due in full and in cleared funds in pounds sterling within 3 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by Skeleton, and the client shall pay all applicable bank charges and transfer fees. Time of payment is of the essence.
8.5 The client shall pay all amounts due under the contract in full without any deduction or withholding except as required by law and the client shall not be entitled to assert any credit, set-off or counterclaim against Skeleton in order to justify withholding payment of any such amount in whole or in part. Skeleton may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the client against any amount payable by Skeleton to the client.
8.6 Where any sum owed by the client to Skeleton under any contract to which these conditions apply is overdue:
8.6.1 the client shall pay to Skeleton reasonable compensation for all debt recovery costs incurred by Skeleton, together with interest in accordance with the terms of The Late Payment of Commercial Debts (Interest) Act 1998 (and any enactment, order, regulation or other statutory instrument made thereunder) on the amount unpaid from the due date for payment until payment is made in full, whether before or after any judgment; and
8.6.2 Skeleton may withhold the supply of any services due to be made to the client under any contract to which these conditions apply, and/or terminate the client’s access to or use of the deliverables or services, until arrangements as to payment or credit have been established which are satisfactory to Skeleton.
8.7 If the client fails to pay any amount in accordance with these conditions, Skeleton may bring an action against the client for the outstanding amounts at any time (together with the debt recovery costs and interest referred to in Condition 8.6.1).
9 Website development and acceptance of the Website
9.1 Where any project specification or services relate to website design and development, once Skeleton has completed the design and development of the website in accordance with the relevant milestone of the project specification, Skeleton shall make reasonable endeavours to test compliance of the website with the project specification.
9.2 If any failure to pass the acceptance tests results from a defect which is caused by an act or omission of the client, or by one of the client’s sub-contractors or agents for whom Skeleton has no responsibility (Non-Supplier Defect), the Website shall be deemed to have passed the Acceptance Tests not withstanding such Non-Supplier Defect. Skeleton shall provide assistance reasonably requested by the client in remedying any Non-Supplier Defect by supplying additional services or products. The client shall pay Skeleton in full for all such additional services and products at Skeleton‘s then current fees and prices.
9.3 The client’s acceptance of the website shall be deemed to have taken place upon the occurrence of any of the following events:
9.3.1 the client confirms its acceptance of the website by approving the relevant milestone; or
9.3.2 the client uses any part of the website for any revenue-earning purposes or to provide any services to third parties other than for test purposes.
9.4 The client acknowledges and accepts that the Website may not function correctly with all browser software.
9.5 The client acknowledges that Skeleton has no control over any content placed on the website by visitors and that Skeleton does not purport to monitor the content of the Website. Skeleton reserves the right to remove content from the website where it reasonably suspects such content is inappropriate content. Skeleton shall notify the customer promptly if it becomes aware of any allegation that any content on the website may be inappropriate content.
10.1 In the event that Skeleton provides hosting services to the client in relation to any deliverables, the client acknowledges and accepts that Skeleton makes no guarantees as to the continued availability or interruption of this service and that Skeleton accepts no liability for losses caused by the unavailability, malfunction or interruption of this service, or for loss of turnover, sales, revenue, profits or indirect, consequential or special loss.
10.2 Unless agreed otherwise, Skeleton shall be under no obligation to update any deliverables.
11 Client Materials
11.1 The client shall be responsible for the accuracy and completeness of the client materials.
11.2 The customer shall indemnify Skeleton against all damages, losses and expenses arising as a result of any action or claim or complaint that the client materials or visitor content constitutes inappropriate content.
11.3 Skeleton reserves the right to refuse to include the client materials on or in any deliverables, in the event that Skeleton (at its discretion) considers that such material constitutes inappropriate content, unless adequate proof is provided by the client to the contrary to Skeleton’s sole satisfaction.
11.4 Skeleton reserves the right to refuse to handle in any way any inappropriate content and to terminate the provision of any services should the necessity arise.
12 Client’s warranties and indemnity
12.1 The client warrants and represents that:
12.1.1 it has permission to use and reproduce the client materials on or within the deliverables;
12.1.2 it has full power and authority to enter into and perform its obligations under the contract; and
12.1.3 the client Materials, and the use, reproduction and distribution of the client Materials, shall not infringe any applicable laws, obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, regulations or third party rights (including material which is menacing, blasphemous or breach any third party Intellectual Property Rights).
12.2 The client shall fully indemnify Skeleton, and keep Skeleton indemnified, from and against all liability, costs, claims, damages, losses and expenses (including legal expenses) incurred or suffered by Skeleton as a result of a breach of these warranties or in connection with any visitor content, including any claim or complaint made against Skeleton by any third party.
13 Intellectual Property
13.1 Skeleton shall be entitled to include on or within each of the deliverables an appropriate credit communicating Skeleton’s authorship of the deliverables, together with Skeleton’s website address and/or other contact details.
13.2 The client acknowledges and accepts that Skeleton shall be entitled to use and advertise the deliverables (or elements thereof) for its own promotional and portfolio purposes (including, without limitation, on Skeleton’s website).
13.3 Subject to condition 13.5, all Intellectual Property Rights in the deliverables shall, as between Skeleton and the client, be the property of Skeleton.
13.4 Subject to payment of all fees due to Skeleton in accordance with these conditions, and subject to condition 13.8, Skeleton grants to the client a non-exclusive, royalty-free licence to use the deliverables for the purposes set out in the project specification.
13.5 For the avoidance of doubt, any scripts, applications or software (unless specifically agreed) written by Skeleton remain the copyright of Skeleton and may only be commercially reproduced or resold with the permission of Skeleton.
13.6 The client acknowledges and accepts that the deliverables may include materials and content that are owned by third parties and used by Skeleton under licence, including “open source” code. The client agrees to abide by the terms of any licence applicable to such materials and content.
13.7 The client acknowledges and accepts that a website may comprise third party website templates used by Skeleton under licence, which may be available to other parties under similar licences. The client agrees to abide by the terms of any licence applicable to such templates.
13.8 The client acknowledges and accepts that it may not, without the prior written consent of Skeleton copy, adapt, or sub-license any of the SP Intellectual Property (including, without limitation, the source code in the website).
13.9 The client shall not dispute or challenge the validity of the SP Intellectual Property or the rights of Skeleton to the SP Intellectual Property. The client shall not do, or omit to do, anything in its use of the SP Intellectual Property that could adversely affect its validity.
13.10 Skeleton makes no representation or warranty as to the validity or enforceability of the SP Intellectual Property or as to whether any intellectual property rights of third parties in any territory.
14 Limitation of liability
14.1 Nothing in these Conditions shall limit or exclude Skeleton’s liability for:
14.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
14.1.2 fraud or fraudulent misrepresentation; or
14.1.3 any matter in respect of which it would be unlawful for Skeleton to exclude or restrict liability.
14.2 Subject to Condition 14.1:
14.2.1 Skeleton shall not be liable to the client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect or consequential loss or damage, including (without limitation) loss of goodwill, loss of contracts, loss of profits, or any indirect or consequential loss arising under or in connection with the contract, the services, and/or the website (including any losses that may result from any breach of the contract by Skeleton, its employees, agents or subcontractors); and
14.2.2 Skeleton’s total liability to the client in respect of all other losses arising under or in connection with the contract, the services and/or the website, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by any breach of the contract by Skeleton, its employees, agents or subcontractors shall not exceed the higher of (i) the price of the services; and (ii) the actual proceeds received by Skeleton under its public liability policy (or other relevant insurance policy) in respect of the liability in question.
14.2.3 Except as set out in these conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
14.2.4 This clause 14 shall survive termination of the Contract.
15 Force majeure
15.1 Skeleton shall not be in breach of these Conditions, nor liable for any failure or delay in performance of its obligations under these Conditions arising from or attributable to acts, events, omissions or accidents beyond its reasonable control
16 Assignment and sub-contracting
16.1 Skeleton shall be entitled to assign, transfer or sub-contract all or any of its obligations under any contract with the client to which these conditions apply.
16.2 The client may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the contract without the prior written consent of Skeleton.
17 Termination and suspension
17.1 Without prejudice to any other rights or remedies available to Skeleton, Skeleton may terminate any contract with the client to which these conditions apply or suspend or cancel delivery of any services to be supplied and/or terminate the client’s access to the deliverables under such contract without any liability to the client if:
17.1.1 any sum owed by the client under that contract, any other contract with the client to which these conditions apply or any other contract between Skeleton and the client is overdue;
17.1.2 the client breaches any term of that contract and (if capable of remedy) does not remedy such breach within seven days of being requested to do so by Skeleton;
17.1.3 the client passes a resolution or suffers an order of a court to be made for its winding-up, a receiver, administrative receiver or administrator shall be appointed over all or any part of the client’s undertaking or assets, the client goes into liquidation or ceases to trade or a petition for the appointment of an administrator shall be presented in respect of the client; or
17.1.4 in the reasonable opinion of Skeleton, the client is for any other reason unable to meet its obligations under that contract.
17.2 Upon termination for any reason of any contract with the client, the price payable for any services supplied under such contract for which Skeleton has not received payment prior to termination shall become immediately due and payable.
18 Third party rights
18.1 These conditions do not create any right under any contract to which these conditions apply that is enforceable by any person who is not a party to such contract.
19.1 Any notice or other communication given to a party under or in connection with the contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this condition, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
19.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the recipient’s address; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second business day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one business day after transmission.
19.3 The provisions of this condition shall not apply to the service of any proceedings or other documents in any legal action.
20.1 If any court or competent authority finds that any provision of the contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the contract shall not be affected.
20.2 If any invalid, unenforceable or illegal provision of the contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
21.1 A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
22 Governing law
22.1 The laws of England and Wales shall govern any contract with the Client to which these Conditions apply and the English courts shall have the exclusive jurisdiction (to which the Client hereby irrevocably submits) to resolve any disputes arising out of any such contract.