- (i) “Buyer” means the person whose order for the goods is accepted by the Seller.
- (i) “Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
- (ii) “Goods” means the goods (including any installments of the goods or any parts for them and any aftercare) which the Seller is to supply in accordance with these Conditions.
- (iii) “Seller” means Creative City Media Ltd (whose registered office is at 23/1 Broughton Place, Edinburgh EH1 3RW registered number 449515).
- (iv) “Writing” includes telex, cable, facsimile transmission, e-mail, and comparable means of communication.
- (v) “Solution”, “Product”, “System”, “Media” means Software & Services supplied under this contract or specification in the proposal or quotation.
1 BASIS OF SALE
1.1 These Conditions shall be incorporated into each Contract and shall govern the Contract to the exclusion of any other terms and conditions (to the fullest extent permitted by law) subject to which any written quotation is accepted or proposed to be accepted, or any written order is made or purported to be made, by the buyer.
1.1 No amendment of, variation of or addition to the Conditions shall be binding unless accepted by the authorised representatives of both the Seller and the Buyer in writing.
1.2 Unless set out in the Conditions or in any amendments, variations, or additions agreed in writing in accordance with Condition 1.2 of these conditions, no terms, conditions or warranties put forward by the buyer or which might otherwise be implied by law or by custom (to the fullest extent their exclusion is permitted by law) shall form part of the Contract between the Buyer and the Seller.
1.3 Quotations, whether written or oral, submitted by the Seller shall be deemed to be an invitation to treat and not an offer.
1.4 The buyer acknowledges that in entering into the Contract with the Seller it does not rely on any representations or statements which may have been made by the Seller or its servants or agents in all such representations or statements are hereby excluded save as may be expressly incorporated in these Conditions or in any amendments, variations or additions agreed in writing in accordance with Condition 1.2 of these Conditions.
1.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance or offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
1.6 Any advice or recommendation given by the Seller or its employees or agents as to the application or use of the goods, which is not confirmed in writing by the Seller, is followed or acted upon entirely at the Buyer’s own risk and accordingly the Seller shall not be liable for any advice or recommendation which is not so confirmed.
2 TERMS OF PAYMENT
Following acceptance under clause 5, the Seller shall be entitled to claim payment of those charges specified in the Proposal or Quotation as due on acceptance. Subsequent charges shall become due for payment at the intervals specified in the Proposal or Quotation. The Buyer will notify to the Seller in writing any reasons for withholding payment within 7 working days of receipt of invoice. If the payment of any sum due shall be delayed by the Buyer, the Seller shall be entitled to charge interest at 8% above base-rate on the amount of the delayed payment for the period of delay.
3 RESERVATION OF TITLE OF GOODS AND SERVICES
Title and property to the goods and/or services supplied shall remain with the seller until such time as the buyer makes payment in full for the goods and/or services supplied by the seller to the buyer. Until title to the goods and/or services passes to the buyer, the seller shall be entitled to demand the return of the goods and/or services and if the buyer fails to do so, to enter the buyer’s premises or those of any third party where the goods and/or services are stored and repossess the goods and/or services.
The Seller shall deliver the goods to the location and, if applicable, install the goods. The Documentation shall also be delivered to the location.
5.1 Where no acceptance tests are specified in writing on or attached to the official purchase order, acceptance of the goods (whether software or hardware) shall be deemed to take place on delivery to the Buyer. The Buyer’s signature on a delivery note or courier’s documents shall be deemed as acceptance of the goods.
5.2 Where acceptance tests are specified on or attached to the Buyers official order, acceptance of the goods shall be deemed to take place when the goods have passed such tests to the Buyer’s satisfaction.
5.3 In the event that acceptance tests are delayed due to the acts or omissions of the Buyer, then the Seller shall give 14 days notice of his requirements that the tests shall be carried-out. If such tests are not then carried-out within a further period of 14 days due to the continuing acts of omissions of the Buyer, the goods shall then be deemed to have been accepted on the expiry of such further period.
5.4 If the Buyer uses the goods before acceptance under this Clause, except for testing purposes, then the goods shall be deemed to have been accepted on the date of first use.
6 MAINTENANCE AND SUPPORT
6.1 A maintenance service, if required, shall be provided as specified in the Seller’s support contract from the date of acceptance.
6.2 Where the provision of error correction is included in the maintenance service and charge specified in our Maintenance Schedule (Appendix 2), it shall be conditional upon the Buyer having:-
(i) provided adequate information in respect of any malfunction in the System
(i) incorporated all amendments issued by the Seller, and
(ii) not otherwise changed the System
6.3 Where a new issue or update of the software and/or Documentation or part thereof is released by the Seller or representatives thereof, it shall be installed by the Buyer (unless otherwise specified) and used by the Buyer except where the Buyer elects to retain and use the superseded issue of the software, in which case the Seller shall use his best endeavors to provide a maintenance service on terms to be agreed.
7 INDEMNITY AND INSURANCE
7.1 The Seller shall indemnify and keep indemnified the Buyer, against injury (including death) to any person or loss of or damage to any property (including the System) which may arise out of the act, default or negligence of the Seller, his employees or agents against all claims, demands, proceedings, damages, costs, charges and expenses whatsoever in respect thereof or in relation thereto, provided that the Seller shall not be liable for nor be required to indemnify the Buyer against any compensation or damages for or with respect to injuries or damage to persons or property to the extent that such injuries or damages result from the act, default or negligence on the part of the Buyer his employees or contractors (not being the Seller or employed by the Seller).
7.2 The Buyer shall indemnify and keep indemnified the Seller against injury (including death) to any person or loss of or damage to any property (including the System) which may arise out of the act, default or negligence of the Seller, his employees or agents in consequence of the Seller’s obligations and against all claims, demands, proceedings, damages, costs, charges and expenses whatsoever in respect thereof or in relation thereto, provided that the Buyer shall not be liable for nor be required to indemnify the Seller against any compensation or damages for or with respect to injuries or damage to persons or property to the extent that such injuries or damage result from any act, default or negligence on the part of the Seller his employees or contractors.
7.3 Without thereby limiting their responsibilities under Sub-Clause 6.1 and 6.2, each party shall insure with a reputable insurance company against all loss of or damage to property and injury to persons (including death) arising out of or in consequence of his obligations and against all actions, claims, demands, costs and expenses in respect thereof, save only as is set out in the exceptions in Sub-Clause 7.4.
7.4 The liability of the parties under Sub-Clause 7.1 and 7.2, as appropriate, shall exclude damage or injury (other than injury including death resulting from negligence) consequent upon design, formula, specification or advice. Except in respect of injury, including death to a person due to negligence for which no limit applies, the liability of the parties under Sub-Clause 7.1 or 7.2 as appropriate shall not exceed the total sum paid to Creative City Media Ltd. in respect of the System supplied under this contract in respect of any event or series of connected events.
8.1 The Seller and the Buyer shall divulge confidential information only to those employees who are directly involved in the account or use of the systems and shall ensure that such employees are aware of and comply with these obligations as to confidentiality.
8.2 The obligations of both parties as to disclosure and confidentiality shall come into effect on the date of delivery of the system and shall continue in force notwithstanding the termination of any supply contract.
9 FORCE MAJEURE
Neither party shall be liable for failure to perform its obligations if such failure results from circumstances beyond the party’s reasonable control.
No delay, neglect, or forbearance on the part of either party in enforcing against the other party any term or condition shall either be or be deemed to be a waiver or in any way prejudice any right of that party.
The Seller reserves the right to showcase any material or information relating to the solutions provided to the Buyer in any publicity or marketing activity.
Any dispute or difference which may arise between the Buyer and Seller in conjunction with or arising out of the System may, by agreement of both parties, be resolved by arbitration, in which event such dispute or difference shall be referred to a single arbitrator to be agreed between the Buyer and the Seller or, failing such agreement within fourteen days, to be nominated by the President for the time being of the British Computer Society.
Unless otherwise agreed in writing between the parties, the System shall be subject to and construed and interpreted in accordance with English Law and shall be subject to the jurisdiction of the courts of England.
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