The following Terms and Conditions apply to all VB Media products, hosting and services provided by VB Media to the Customer.
1.1. "Customer" means the person or company for whom VB Media has agreed to provide the Services and/or Products in accordance with these Terms and Conditions.
1.2. "Change Control Procedure" means the procedure set out in the SOW or quotation by which changes in the SOW or quotation are agreed in writing between the parties.
1.3. "Products" means any goods supplied to the Customer by VB Media including computer and/or software products.
1.4. "Intellectual Property" means any and all patents, patent applications, know-how, trade marks, trade mark applications, trade names, registered design, copyright, database rights or other similar intellectual property rights created, developed, subsisting or used in connection with the Services and whether in existence at the date hereof or created in the future.
1.5. "VB Media" means Venture Digital Limited. Company number 11231405.
1.6. "Product Statement" means the Product Statement attached to these Terms and Conditions where Products only are to be supplied to the Customer.
1.8. "FUP" means the Fair Use Policy to which these Terms and Conditions are attached where Services and Products are to be supplied to the Customer.
1.9. "SOW" means the Statement of Work or Site Specification to which these Terms and Conditions are attached where Services and Products are to be supplied to the Customer
1.10. "Services" means the Services to be provided by VB Media for the Customer and referred to in the SOW.
1.11. The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation.
1.12. References to the singular shall include the plural where appropriate.
2. Scope Of Contract
2.1. These Terms and Conditions together with any other documentation referred to specifically shall comprise the entire agreement between the Customer and VB Media ("the Contract"). No other statement written or oral, including any statements in any brochure, promotional literature, quotations or tenders of VB Media nor any Terms and Conditions contained in a purchase order of the Customer shall be incorporated into the contract or have legal effect.
2.2. The terms set out below shall prevail over any terms put forward by the Customer and except as provided for in 2.3, no conduct of VB Media shall constitute acceptance of any terms put forward by the Customer unless VB Media expressly agrees to them in writing signed by its duly authorised agent.
2.3. No employee or agent of VB Media has any authority to vary these terms orally or to make any representation on behalf of VB Media as to their effect. No addition or variation of these terms shall be binding on VB Media unless in writing signed by one of VB Media's Directors or effected under the Change Control Procedure or in accordance with the "Change Control" clause within these terms.
2.5. Our Fair Use Policy (FUP) is included as part of this agreement and can be provided separately.
2.6. In case of conflict between the provisions of these Terms and Conditions and the SOW, TOU or FUP, the provisions of the Terms and Conditions shall prevail.
3.1. It is not necessary for any Customer to have signed an acceptance of these Terms and Conditions for them to apply. If a Customer purchases this product then the Customer will be deemed to have satisfied themselves as to the terms applying and have accepted these Terms and Conditions in full.
3.2. Any purchase or use of our services implies that you have read and accepted our Terms and Conditions.
4. Charges And Payment
4.1. Where Services together with Products are supplied the charges and the payment terms shall be in accordance with the SOW, TOU and FUP. Where Products only are supplied the charges and payment terms shall be in accordance with the Product Statement. In the absence of specified payment terms, the Customer shall pay invoices in advance of the Product or Service being delivered. Failure to meet due payment dates will entitle VB Media to suspend work and charge the Customer for all reasonable costs and expenses occasioned thereby. All payments due from the Customer shall be made without any set-off, deduction or counter claim of any nature.
4.2. Overdue payments will attract interest charges for late payment at 2% per annum above the Base Rate of Barclays Bank PLC. All taxes or duties which VB Media shall have to pay, or collect, in connection with the provision of the Services, shall be borne by the Customer (including VAT at the applicable rate at the date of invoice).
4.3. If the Customer fails to pay VB Media any sum due pursuant, the Customer shall be liable to pay any 'late payment' fees to VB Media. VB Media reserves its stay right to claim any 'late payment' fees and compensation for debt recovery costs under the late payment legislation 2002 if not paid according to agreed terms.
4.4. Any additional work required to be carried out or Products supplied by VB Media not referred to in the SOW or the Product Statement shall be charged for separately at VB Media's then-prevailing rates.
4.5. VB Media reserves the right, by giving notice to the Customer at any time before delivery of Products to increase the price of the Products to reflect any increase in the cost to VB Media which is due to any factor beyond the control of VB Media.
4.6. Prices quoted are based on the provision of Services during normal working hours of 8:30 am to 5:30 pm Monday to Friday inclusive and both Services and Products are quoted net of VAT and any other applicable taxes.
5. Incidental Expenses
The Customer shall pay any reasonable and proper expenses specified by VB Media. Such expenses may include travel, accommodation and out-of-pocket expenses.
6.1. Title of all VB Media Services and Products shall remain with VB Media and shall not pass to a customer unless explicitly detailed in writing.
6.2. Title of any VB Media Products intended to pass shall remain with VB Media until all payments due under the Contract are paid in full.
6.3. Between delivery and payment in full the risk in any Products supplied shall be with the Customer, who shall keep the same in good condition and repair, properly stored and labelled as being VB Media's property, and comprehensively insured.
6.4. In the event of non-payment (in full or in part) for the Products by due date, the Customer hereby irrevocably licenses VB Media (insofar as it is able) to enter upon any premises to remove the Products.
7. Rights To Developments
Any Intellectual Property which may be developed by VB Media, relating to the provision of Services, including any enhancements or modifications made to any Products shall vest in and remain the property of VB Media. VB Media may in its sole discretion develop, use, market and licence any software or data processing material that is similar or related to that which was developed by VB Media for the Customer. The Customer shall execute such documents as VB Media may reasonably request to give VB Media the benefit of and to obtain protection for any Intellectual Property developed by it in carrying out the Services. Subject to payment of all amounts due under this Contract VB Media grants to the Customer a non-exclusive and non-transferable licence to use that part of VB Media's Intellectual Property necessary for the Customer's utilisation of the Services.
8. Warranty And Liability
8.1. VB Media warrants to the Customer that the Services will be provided using reasonable care and skill. VB Media also warrants that it will take all reasonable steps to comply with any timetable in the SOW but time shall not be of the essence in relation to such obligations. Where VB Media supplies in connection with the provision of the Services any Products or Services supplied by a third-party, VB Media does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise but shall, where possible, assign to the Customer the benefit of any warranty or guarantee given to it.
8.2. VB Media shall have no liability to the Customer for any loss, damage, costs, expenses or other claims for compensation arising from any instructions or content supplied by the Customer which are incomplete, inaccurate, or arising from their late arrival or non arrival, or any other fault of the Customer including the failure to fulfil its obligations referred to in the "Customer Obligations" Clause.
8.3. VB Media shall have no liability to the Customer for any loss, damage, costs, expenses or other claims for compensation arising from any any alterations made by the Customer. Such alterations include, but are not limited to additions, modifications or deletions.
8.4. Except in respect of death or personal injury caused by VB Media's negligence, VB Media shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of VB Media, its servants or agents or otherwise) which arise out of or in connection with the provision of the Services or their use by the Customer and VB Media's liability in respect of the Contract shall be limited in the following manner:-
8.4.1. VB Media's liability for breach of contract shall not exceed VB Media's charges for the supply of the Services and/or Products under this contract.
8.4.2. Save in respect of damages for death or personal injury, VB Media's liability for negligence and other torts shall be limited to the amount recoverable under its relevant insurance policies.
8.4.3. No action regardless of form related to or arising out of this Contract may be brought by the customer more than two years after the cause of action has accrued.
8.4.4. Subject as expressly provided in this Agreement, and except where the Products are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9. Change Control
VB Media may at any time and without using the Change Control Procedure make any changes to the Services which are necessary to comply with any applicable safety or other statutory requirements.
10.1. The Customer retains the copyright to data, files and graphic logos provided by the Customer, and grants VB Media the rights to host and publish such material.
10.2. No rights granted to the Customer in these Terms and Conditions which relate to copyright may be assigned, loaned or transferred to any third party.
10.3. The Customer must obtain permission and rights to use any information or files that are copyrighted by a third-party. The Customer is further responsible for granting VB Media permission and rights for use of the same and agrees to indemnify and hold harmless VB Media from any and all claims resulting from the Customer's negligence or inability to obtain proper copyright permissions.
10.4. Any asset provided to the Customer from VB Media must not be cropped, edited, superimposed with type or other material or have any part deleted or in any way defaced without prior written permission of VB Media.
10.5. Any asset provided to the Customer by VB Media is for use only on a VB Media website. This includes, but is not exhaustive of, any and all images, graphics, photography and templates.
11. Health And Safety
The Customer shall take all reasonable precautions to ensure the health and safety of VB Media personnel while the same are on the Customer’s premises. The Customer agrees to observe the provisions of the Health and Safety at Work etc Act 1974 and any amendments thereto.
12. Customer Obligations
12.1. The Customer agrees to carry out its obligations and responsibilities as set out in the SOW, TOU and FUP.
12.1. In all circumstances the Customer will provide VB Media with all necessary co-operation, information and support that may reasonably be required by VB Media for the performance of its obligations hereunder. VB Media will be entitled to charge for additional time required to complete the Services arising as a result of failure of the Customer to meet its obligations.
The Customer agrees not to solicit the employment of, nor offer employment to, nor use the Services of any employee, or consultant of VB Media who has been engaged either directly or indirectly in the provision of the Services, for a period of 6 months from the date of final payment for Services. In the event of the Customer employing or using the Services of any such employee or consultant whether directly or indirectly, in contravention of this paragraph, the Customer will pay to VB Media a sum equivalent to one years salary for that employee or consultant, such sum to be payable on the date when such employee or consultant is first employed or his services used by the Customer.
14.1. Either party may terminate this Contract immediately by notice in writing to the other if:
14.2. The other commits any material breach of this Contract which is capable of remedy and fails to remedy the same within 30 days of notice from the other party requiring the remedy or
14.3. The other commits any material and irremediable breach of this Contract or repeats any breach which has previously been the subject of a notice under sub-clause 14.1 above or
14.4. The other has an Administrator, Receiver, Administrative Receiver, Liquidator or Trustee in Bankruptcy or similar officer appointed or enters into a composition or arrangement for the benefit of its creditors.
14.5. In the event that the Contract is terminated before the completion of the Services, VB Media shall be entitled to payment by the Customer for work completed on a quantum meruit basis.
14.6. For the purposes of this clause a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all material respects other than as to the time of performance.
15. Effect Of Termination
Termination or determination of this Contract shall be without prejudice to any other rights or remedies a party may be entitled to under this Contract or at law and shall not affect any accrued rights or liabilities of either party.
Confidential Information includes (without limitation) all and any information about business plans, research and development projects, product formulae, processes, inventions, designs or know-how, sales statistics, financial information, and the names, addresses and contact details of customers or potential customers or suppliers. Both parties have a responsibility to protect and maintain the confidentiality of both parties’ Confidential Information. Both parties will not reveal any such Confidential Information except as expressly authorised, required by law, or strictly necessary for the provision of the Services. This obligation will continue until any such information comes into the public domain other than through any breach of this provision.
17. Licensing Of Products
Third-party Products purchased by the Customer are sold subject to the Terms and Conditions of use of the relevant third-party licensor for such Products.
All notices required to be sent hereunder shall be in writing and shall be mailed to the address listed within the SOW or Product Statement. A notice shall be deemed to have been served, if sent by first class mail, two business days after posting.
In the event of any provision of these Terms and Conditions being held to be invalid or unenforceable, the remaining provisions will remain in full force and effect.
The waiver by either party of any default or breach of this Contract shall not constitute a waiver of any other subsequent default or breach.
The Customer will not be entitled to assign this Contract or their rights or obligations hereunder without the prior written consent of VB Media. VB Media shall be entitled to carry out any of its obligations under this Contract through sub-contractors.
The Law governing this Contract shall be English law and the forum for settling disputes shall be the English Courts.
23. Force Majeure
VB Media shall not be liable for any consequences due to or resulting from any cause beyond its reasonable control and where this has resulted in delays VB Media shall be entitled to a reasonable extension of time and shall be entitled to charge for such time at its then-prevailing rates.