Terms and Conditions - YCS Digital

Definitions and interpretation

1. In these Conditions the following definitions apply:

Conditions	means YCS Digital’s terms and conditions of supply set out in this document;
Commencement Date	means the date the Order begins as set out in the Schedule;
Confidential Information	means any commercial, financial, or technical information, information relating to either party, including know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;
Contract	means the agreement between YCS Digital and the Client for the supply of Services incorporating these Conditions and the Order and based on a Quotation provided by YCS Digital;
Client	has the meaning as set out in the Order;
Client Materials	means all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to YCS Digital in connection with the Services;
Deliverables	means any designs, documents, products, and materials provided by YCS Digital to the Client in relation to the Services, including the Final Designs;
Fees	has the meaning set out in clause 3.1;
Final Designs	means the final concept or design provided to the Client excluding all draft designs and any alternative designs, ideas, or concepts;
Force Majeure	means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action, but excluding the Client’s inability to pay or circumstances resulting in the Client’s inability to pay;
Intellectual Property Rights	means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in software, rights in Confidential Information, rights to invention, rights to sue for passing off, domain names and all other intellectual property rights and similar rights and, in each case: whether registered or not; including any applications to protect or register such rights; including all renewals and extensions of such rights or applications; whether vested, contingent or future; to which the relevant party is or may be entitled; and, in whichever part of the world existing;
Milestones	means the significant tasks and dates specified in the Order;
Order	means the order for the Services placed by the Client following the submission of a Quotation from YCS Digital;
Quotation	means the project proposal from YCS Digital to the Client;
YCS Digital	means YCS Digital Ltd, a limited company registered in England and Wales under No. 10168245, whose address is 26 Birch Grove, Welling, Kent DA16 2JW;
Services	means the Services set out in YCS Digital Quotation to be performed by YCS Digital for the Client in accordance with the Contract;
Specification	means the description provided for the Services set out or referred to in the Contract;
YCS Digital Personnel	means all employees, officers, staff, other workers, agents, and consultants of YCS Digital and any of their sub-contractors who are engaged in the performance of the Services from time to time; and
TeamWork	means the TeamWork platform which can be found here https://www.teamwork.com/ ;
YCS Digital Personnel	means all employees, officers, staff, other workers, agents, and consultants of YCS Digital and any of their sub-contractors who are engaged in the performance of the Services from time to time; and
VAT	means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Services.

In these Conditions, unless the context requires otherwise:

a reference to the Contract includes these Conditions, the Order, and their respective schedules, appendices and annexes (if any);
any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;
a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
a reference to ‘writing’ or ‘written’ includes email; and,
a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.

Application of these conditions

1. 1. These Conditions apply to and form part of the Contract between YCS Digital and the Client. They supersede any previously issued terms and conditions.
  2. No terms or conditions endorsed on, delivered with, or contained in the Client’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that YCS Digital otherwise agrees in writing.
  3. No variation of these Conditions or to an Order or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of YCS Digital and the Client respectively.
  4. Each Order by the Client to YCS Digital shall be an offer to purchase Services subject to the Contract including these Conditions.
  5. If YCS Digital is unable to accept an Order, it shall notify the Client as soon as reasonably practicable.
  6. YCS Digital may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Services shall arise, until the earlier of:
    1. YCS Digital written acceptance of the Order; or
    2. YCS Digital performing the Services or notifying the Client that they are ready to be performed (as the case may be).

Fees

1. 1. The fees for the Services shall be as set out in a Quotation from YCS Digital (which is valid for 30 days only) or, where no such provision is set out, shall be as advised by YCS Digital from time to time before the date the Order is placed (the Fees).
  2. YCS Digital reserves its right to charge additional Fees in the event that its Services are delayed or paused as a result of an action (e.g. a request) or inaction (e.g. a failure to provide information) of the Client.
  3. The Fees are exclusive of VAT. The Client shall pay any applicable VAT to YCS Digital on receipt of a valid VAT invoice.
  4. Where there is change to the terms of the Order (including any Deliverables and timeframes) requested by the Client, YCS Digital will provide amended Fees as soon as practicable. The Client accepts that modifications requiring extra work by YCS Digital will result in supplementary Fees. These may include but are not limited to: changes made after final copy has been submitted; changes to designs after acceptance or to artwork after sign-off; new or additional work; and changes to the Specification.
  5. In addition to the Fees, the Client is responsible for reimbursing to YCS Digital the costs of all out-of-pocket expenses, and any VAT thereon, purchased as part of the Services by YCS Digital. Any such costs are subject to a fixed percentage handling charge. These costs will include such expenses as: web development, copywriting, photography, illustration, printing, travel, postage, deliveries, and materials.

Payment

1. 1. YCS Digital shall invoice the Client for the Services, partially or in full, at any time following acceptance of the Order.
  2. The Client shall pay all invoices:
    1. in full without deduction or set-off, in cleared funds within the terms set out in the Milestones; and,
    2. to the bank account nominated by YCS Digital.
  3. Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:
    1. YCS Digital may, without limiting its other rights, charge interest on such sums at 5% a year above the base rate of the Bank of England from time to time in force,
    2. interest shall accrue on a daily basis and apply from the due date for payment until actual payment in full, whether before or after judgment; and
    3. YCS Digital reserves the right to withhold the provision of any Deliverables.

Performance

1. 1. YCS Digital shall use its reasonable endeavours to meet estimated dates for performance, but any such dates are indicative only. Estimates are based on normal and reasonable time schedules; overtime/rush Fees may arise due to additional requests or delays in meeting agreed deadlines.
  2. YCS Digital shall not be liable for any delay in, or failure of performance caused by:
    1. the Client’s failure to provide information or materials requested by YCS Digital;
    2. the Client’s change to the terms of the Order; or,
    3. Force Majeure.
  3. YCS Digital will endeavour to ensure that its Deliverables are of the highest quality and that they comply with the Client’s instructions.
  4. The Client must check, proofread, and examine all Deliverables and inform YCS Digital of any error within the dates specified in the scheduled. Where dates are not specified in the scheduled the Client must inform YCS Digital within 7 days of receipt: in the absence of such notice, the Client will be deemed to have accepted such Deliverables. The final responsibility for the accuracy of the information in the Deliverables and for checking the Final Designs before production rests with the client.
  5. YCS Digital will take all reasonable care in the selection and supervision of suppliers, but the Client has final responsibility for the approval of artwork, proofs, etc. The Client agrees that when dealing with suppliers, YCS Digital contracts as the Client’s agent only, without liability as a principal. Where the Client wishes to handle production purchasing direct, YCS Digital will not have any input into quality control unless a supervision fee is agreed.
  6. YCS Digital are not a website hosting company, however, YCS Digital does offer (through partners) support for white labelled website hosting, email or other services relating to hosting and maintenance.
  7. YCS Digital are not responsible for the Client’s domain and any updates relating to it.

Warranty

1. 1. YCS Digital warrants that, the Services shall conform in all material respects to their description and the Specification.
  2. The Client warrants that it has provided YCS Digital with all relevant, full and accurate information as to the Client’s business and needs.
  3. As the Client’s sole and exclusive remedy, YCS Digital shall, at its option, remedy, re-perform or refund the Services that do not comply with clause 6.1, provided that:
    1. the Client provides written notice to YCS Digital not later than 14 days from performance of the Services; and,
    2. such notice specifies that some or all the Services do not comply with clause 6.1 and identifies in sufficient detail the nature and extent of the defects; and
    3. the Client gives YCS Digital a reasonable opportunity to examine the claim of the defective Services.
  4. Except as set out in this clause 6 YCS Digital gives no warranties and makes no representations in relation to the Services.

Indemnity and insurance

1. 1. The Client shall indemnify, and keep indemnified, YCS Digital from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by YCS Digital because of or in connection with the Client’s breach of any of the Client’s obligations under the Contract.
  2. The Client shall have in place contracts of insurance with reputable insurers to cover its obligations under these Conditions.

Limitation of liability

1. 1. The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether caused by negligence or misrepresentation) shall be as set out in this clause 8.
  2. Subject to clause 8.5, YCS Digital total liability shall not exceed the Fees.
  3. Subject to clause 8.5, YCS Digital shall not be liable for consequential, indirect, or special losses or any of the following (whether direct or indirect):
    1. loss of profit;
    2. loss of use;
    3. loss of contract;
    4. loss of opportunity;
    5. harm to reputation or loss of goodwill.
  4. YCS Digital shall not be liable for actions of third-party providers, or suppliers, including printers. YCS Digital shall not be responsible for any errors apparent in artwork, copy or proofs that have been signed off by or on behalf of the Client.
  5. Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
    1. death or personal injury caused by negligence;
    2. fraud or fraudulent misrepresentation; or,
    3. any other losses which cannot be excluded or limited by law.

Intellectual property

1. 1. Subject to the full payment of the Fees and any other sums due under these Conditions, the Client shall own all Intellectual Property Rights in the Final Designs and any other specific Deliverables nominated by YCS Digital only.
  2. Intellectual Property Rights are retained by YCS Digital in all materials or Deliverables that do not proceed beyond concept stage or are not in the Final Designs. If a project does not proceed, or Fees are not paid (in full), then all materials or Deliverables generated by YCS Digital will be returned by the Client.
  3. Although YCS Digital will endeavour to ensure that no design or other works proposed by property rights of any third party, it is the Client’s responsibility to ensure that any names, logotypes or other representations created for or recommended to the client by YCS Digital, is capable of being used by the client without infringing any Intellectual Property Rights or other rights of any third party.
  4. The Client shall retain ownership of all Intellectual Property Rights in the Client Materials.
  5. The Client grants YCS Digital a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials, solely for the purpose of performing the Services.
  6. YCS Digital is entitled to claim authorship of all Deliverables for which it is responsible and have rights of reasonable publicity. The Client will provide (at no cost) samples to YCS Digital of all Deliverables produced as part of the Services.
  7. The Client grants YCS Digital a perpetual, non-exclusive, royalty-free licence to use and display the Final Designs and any other specific Deliverables nominated by YCS Digital on YCS Digital’s website, as part of its portfolio of work, on a third-party website for marketing or promotional purposes, and/or as part of an awards submission.
  8. The Client:
    1. warrants that the receipt and use of the Client Materials in the performance of this agreement by YCS Digital shall not infringe the rights, including any Intellectual Property Rights, of any third party;
    2. shall keep YCS Digital indemnified in full against all costs, expenses, damages and losses, including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by YCS Digital as a result of or in connection with any claim brought against YCS Digital for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in accordance with the terms of this agreement of the Client Materials.

Confidentiality

1. 1. Both parties shall keep confidential all Confidential Information of the other party and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
    1. any information which was in the public domain at the date of the Contract;
    2. any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement; or
    3. any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
  2. This clause shall remain in force in perpetuity.

Force majeure

Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such the event causes a delay or failure in performance and when it ceases to do so. If the Force Majeure event continues for a continuous period of more than 14 days, either party may terminate the Contract by written notice to the other party.

Termination

1. 1. Either party may terminate the Contract for convenience upon the provision of 3 months’ written notice.
  2. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if such other party:
    1. commits any breach of the Contract (whether or not amounting to a material breach or repudiation of the Contract), which breach, if capable of remedy, is not remedied within 14 days of having been given notice in writing specifying the breach and requiring it to be remedied; or,
    2. is unable to pay its debts as they fall due or enters into compulsory or voluntary liquidation (other than for the purpose of effecting a bona fide reconstruction or amalgamation) or compounds with or convenes a meeting of its creditors or has a receiver, manager, administrator or administrative receiver appointed in respect of any of its assets or any resolution is passed for its voluntary liquidation or if any petition is presented to any court of competent jurisdiction for its compulsory liquidation or administration or it ceases for any reason to carry on business or takes or suffers any similar action which in the opinion of the party giving notice means that the other may be unable to pay its debts or anything analogous to the foregoing occurs in any jurisdiction.
  3. On termination or expiry of this Contract the Client shall reasonably promptly pay to YCS Digital all of YCS Digital’s outstanding unpaid invoices and, in respect of the Services supplied but for which no invoice has been submitted, YCS Digital may submit an invoice, which shall be payable within 60 days of receipt, (provided, in all instances, that Client shall only be responsible for payment of amounts to the extent to which the corresponding Services have been rendered and Deliverables furnished in accordance with the terms of this Contract); and
  4. Termination or expiry of the Contract shall not affect any accrued rights and liabilities of YCS Digital at any time up to the date of termination.

Other provisions

1. 1. Language translation costs
    1. Where the Client requires any of the Deliverables to translated, YCS Digital will provide this on the following per word rates:
      1. French, Italian, German & Spanish (inc. Austrian German, Galician, Catalan) – £0.117 per word per language
      2. Bulgarian, Greek, Hungarian, Polish, Portuguese, Romanian, Russian, Ukrainian – £0.131 per word per language
      3. Czech, Croatian, Dutch, Estonian, Flemish, Latvian, Lithuanian, Slovak, Slovenian & Turkish – £0.140 per word per language
      4. Danish, Finnish, Norwegian, Swedish, Belgium French – £0.180 per word per language
    2. These rates include all project management and a translation by an in-country translator and a second in-country reviser.
  2. All communication between the parties regarding the Services and Deliverables of this contract are to be held through TeamWork.

Entire agreement

1. 1. The parties agree that the Contract constitutes the entire agreement between them and supersedes all previous agreements, understandings, and arrangements between them, whether in writing or oral in respect of its subject matter.
  2. Each party acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
  3. Nothing in these Conditions purports to limit or exclude any liability for fraud.

Variation

No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, each party.

Assignment

The Client may not assign, subcontract, or encumber any right or obligation under the Contract, in whole or in part, without YCS Digital prior written consent, such consent not to be unreasonably withheld or delayed.

No partnership or agency

The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.

Severance

1. 1. If any provision of the Contract (or part of any provision) is or becomes illegal, invalid, or unenforceable, the legality, validity, and enforceability of any other provision of the Contract shall not be affected.
  2. If any provision of the Contract (or part of any provision) is or becomes illegal, invalid, or unenforceable but would be legal, valid, and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with the minimum such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

Waiver

No failure, delay, or omission by either party in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.

Third party rights

A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.

Governing law

The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.

Jurisdiction

The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).