TERMS & CONDITIONS

AGREED TERMS

Your attention is particularly drawn to clause 10, which sets out our limitation of liability.

1. About us

1.1 Company details
Arch 35 Marketing Ltd is a company incorporated under the Companies Acts with registered number SC512478 and having its registered office at 35 South College Street, Aberdeen, Scotland, AB11 6LE.

1.2 Contacting us
To contact us, telephone us on 01224 054396 or email us at enquiries@arch35.com. How to give us formal notice of any matter under the Contract is set out in clause 15.

2. Our contract with you

2.1 Our contract
These terms and conditions apply to the order by you and the supply of services by us to you. They apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.2 Our proposal
We will send you a proposal which outlines the key commercial terms of our arrangement with you, including, where applicable, the scope of services, fees, contract length, notice periods and any other relevant commercial terms. The latest proposal that we have sent you, prior to the Contract commencing, forms part of our Contract with you.

2.3 Entire agreement
The Contract, incorporating the Proposal, is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty that is not set out in the Contract.

2.4 Language
These Terms and the Contract are made only in the English language.

2.5 Your copy
You should print off a copy of these Terms or save them to your computer for future reference.

2.6 Term
Where the Proposal does not contain a specific contract length, the Contract shall be for one year and shall automatically renew on the expiry of that term each year unless either party gives three months’ prior written notice.

3. Our services

3.1 Descriptions and illustrations
Any descriptions, examples, case studies, images or illustrations on our website are published for the purpose of giving an approximate idea of the services described. They will not form part of the Contract or have any contractual force unless expressly included in the Proposal.

3.2 Compliance with specification
Subject to our right to amend the specification under clause 3.3, we will supply the Services to you in accordance with the Proposal and agreed scope of work in all material respects.

3.3 Changes to specification
We reserve the right to amend the specification and/or Proposal for the Services if required by any applicable statutory or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services.

3.4 Reasonable care and skill
We warrant to you that the Services will be provided using reasonable care and skill.

3.5 Time for performance
We will use all reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates are estimates only. Failure to perform the Services by such dates will not give you the right to terminate the Contract unless expressly agreed otherwise in writing.

4. Your obligations

4.1 It is your responsibility to ensure that:

(a) the terms of your order and Proposal are complete and accurate;

(b) you cooperate with us in all matters relating to the Services;

(c) you provide us, our employees, agents, consultants and subcontractors with access to your premises, systems, platforms, accounts, office accommodation and other facilities as we may reasonably require;

(d) you provide us with such information, content, images, materials, approvals, access and feedback as we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

(e) where applicable, you prepare your premises, systems, accounts or platforms for the supply of the Services;

(f) you obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

(g) you comply with all applicable laws, including health and safety laws; and

(h) you keep all of our materials, equipment, documents and other property belonging to us in safe custody at your own risk, maintain them in good condition until returned to us, and do not dispose of or use them other than in accordance with our written instructions or authorisation.

4.2 If our ability to perform the Services is prevented or delayed by any failure by you to fulfil any obligation listed in clause 4.1:

(a) we will be entitled to suspend performance of the Services until you remedy the default, and to rely on the default to relieve us from the performance of the Services to the extent the default prevents or delays performance;

(b) we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Services; and

(c) it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from your default.

5. Services in the UK only

5.1 Unless otherwise agreed in writing, we provide Services to businesses based in the UK.

5.2 You may place an order for the Services from an address outside the UK, but the order must be for performance of the Services to a business, project or address in the UK unless we agree otherwise in writing.

6. Charges

6.1 In consideration of us providing the Services, you must pay our charges in accordance with this clause 6.

6.2 The Charges are the prices outlined in our Proposal, contract or written agreement with you.

6.3 If you wish to change the scope of the Services after the Contract has been agreed, and we agree to such change, we may amend the Charges, timeline and scope accordingly. Any agreed change should be confirmed in writing.

6.4 Our Charges may change from time to time. We reserve the right to increase our Charges on an annual basis in line with the Retail Prices Index without asking for your consent. Where Charges are to be increased over and above the Retail Prices Index, we will contact you directly.

6.5 Our Charges are exclusive of VAT unless expressly stated otherwise. Where VAT is payable in respect of some or all of the Services, you must pay us such additional amounts in respect of VAT at the applicable rate at the same time as you pay the Charges.

7. How to pay

7.1 Payment terms will be set out in the Proposal, contract or written agreement. Unless otherwise agreed in writing, payment for ongoing Services is taken monthly in advance.

7.2 You can pay for the Services using a debit card, credit card, bank transfer, direct debit or another payment method agreed with us. We may use a third-party online payment processing solution, such as GoCardless, to collect payments. By accepting these Terms, you agree to make payment to us via such a third-party online payment processing solution where applicable.

7.3 Where payment is taken by direct debit, your designated bank account will be charged automatically each month or as otherwise agreed with you.

7.4 We will send you an electronic invoice. For any failed, late or cancelled payments, a £20 administration fee may be applied.

7.5 If you fail to make a payment under the Contract by the due date, then, without limiting our remedies under clause 12, you will have to pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest will accrue each day at 4% a year above the Bank of Scotland’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

7.6 You shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding, other than any deduction or withholding of tax as required by law.

8. Intellectual property rights

8.1 All intellectual property rights in or arising out of or in connection with the Services, other than intellectual property rights in any materials provided by you, will be owned by us unless otherwise agreed in writing.

8.2 You agree to grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy, use and modify any materials provided by you to us for the purpose of providing the Services to you.

8.3 Unless otherwise agreed in writing, once all outstanding Charges relating to a specific deliverable have been paid in full, you will be permitted to use that deliverable for your own business purposes.

8.4 We may use examples of completed work, results, designs, campaigns, content or project outcomes in our portfolio, website, social media, proposals or marketing materials unless you request otherwise in writing.

9. How we may use your personal information

9.1 We will use any personal information you provide to us to:

(a) provide the Services;

(b) process your payment for the Services;

(c) communicate with you about the Services; and

(d) inform you about similar products or services that we provide, but you may stop receiving these communications at any time by contacting us.

9.2 We will process your personal information in accordance with applicable data protection laws. Until a separate privacy policy is published on our website, you can contact us at enquiries@arch35.com with any questions about how we handle your personal information.

10. Limitation of liability

YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

10.1 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

(a) death or personal injury caused by negligence;

(b) fraud or fraudulent misrepresentation; and

(c) any other liability which cannot legally be excluded or limited.

10.2 Subject to clause 10.1, we will not be liable to you, whether in contract, delict, tort, including negligence, breach of statutory duty or otherwise, arising under or in connection with the Contract for:

(a) loss of profits;

(b) loss of sales or business;

(c) loss of agreements or contracts;

(d) loss of anticipated savings;

(e) loss of use or corruption of software, data or information;

(f) loss of or damage to goodwill; or

(g) any indirect or consequential loss.

10.3 Subject to clause 10.1, our total liability to you arising under or in connection with the Contract, whether in contract, delict, tort, including negligence, breach of statutory duty or otherwise, will be limited to the lower of either:

(a) 50% of the total Charges paid under the Contract for the twelve months immediately preceding the event that gave rise to the alleged liability; or

(b) Ten Thousand Pounds Sterling (£10,000).

10.4 Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of the event having occurred and shall expire three months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

10.5 This clause 10 will survive termination of the Contract.

11. Confidentiality

11.1 We each undertake that we will not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning one another’s business, affairs, customers, clients or suppliers, except as permitted by clause 11.2.

11.2 We each may disclose the other’s confidential information:

(a) to such of our respective employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising our respective rights or carrying out our respective obligations under the Contract. We will each ensure that such employees, officers, representatives, subcontractors or advisers comply with this clause 11; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

11.3 Each of us may only use the other’s confidential information for the purpose of fulfilling our respective obligations under the Contract.

12. Termination, consequences of termination and survival

12.1 Without limiting any of our other rights, we may suspend the performance of the Services, or terminate the Contract with immediate effect by giving written notice to you if:

(a) you commit a material breach of any term of the Contract and, if such a breach is remediable, fail to remedy that breach within 20 days of being notified in writing to do so;

(b) you fail to pay any amount due under the Contract on the due date for payment;

(c) you take any step or action in connection with entering administration, provisional liquidation or any composition or arrangement with creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up, having a receiver appointed to any of your assets, ceasing to carry on business, or any analogous procedure in another jurisdiction;

(d) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or

(e) your financial position deteriorates to such an extent that, in our opinion, your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy.

12.2 On termination of the Contract:

(a) you must return all of our materials and any deliverables specified in your order which have not been fully paid for;

(b) all outstanding unpaid invoices and Charges shall become immediately due and payable;

(c) where Services have been supplied but no invoice has yet been submitted, we may submit an invoice, which shall be payable immediately on receipt; and

(d) termination of the Contract will not affect your or our rights and remedies that have accrued as at termination.

12.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.

13. Events outside our control

13.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control.

13.2 If an event outside our control takes place that affects the performance of our obligations under the Contract:

(a) we will contact you as soon as reasonably possible to notify you; and

(b) our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the event outside our control.

13.3 You may cancel the Contract affected by an event outside our control which has continued for more than 60 days. If you opt to cancel, we will refund the price you have paid, less the charges reasonably and actually incurred by us in performing the Services up to the date of the event outside our control.

14. Non-solicitation

You must not attempt to procure services that are competitive with the Services from any of our directors, employees, subcontractors or consultants, whether as an employee, contractor, supplier or freelancer, during the period that we are providing the Services to you and for a period of twelve months following termination of the Contract.

15. Communications between us

15.1 When we refer to “in writing” in these Terms, this includes email.

15.2 Any notice or other communication given by one of us to the other under or in connection with the Contract must be in writing and be delivered personally, sent by pre-paid first class post or other next working day delivery service, or sent by email.

15.3 A notice or other communication is deemed to have been received:

(a) if delivered personally, on signature of a delivery receipt or at the time the notice is left at the proper address;

(b) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; or

(c) if sent by email, at 9.00 am the next working day after transmission.

15.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that the letter was properly addressed, stamped and placed in the post and, in the case of an email, that the email was sent to the specified email address of the addressee.

15.5 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.

16. General

16.1 Assignment and transfer

(a) We may assign or transfer our rights and obligations under the Contract to another entity.

(b) You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.

16.2 Variation
Any variation of the Contract only has effect if it is in writing and agreed by you and us, or by our respective authorised representatives.

16.3 Waiver
If we do not insist that you perform any of your obligations under the Contract, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing.

16.4 Severance
Each paragraph of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.

16.5 Third party rights
The Contract is between you and us. No other person has any rights to enforce any of its terms.

16.6 Governing law and jurisdiction
The Contract is governed by Scots law and we each irrevocably agree to submit all disputes arising out of or in connection with the Contract to the exclusive jurisdiction of the Scottish courts.