Your attention is particularly drawn to the provisions of clause 12 (Limitation of liability).
1. About us
1.1. Company details. ABSTRAKT CREATIVE LTD (company number 05718712) (we and us) is a company registered in England and Wales and our registered office and our main trading address is at Stoney House, 26-30 Stoney Street, Nottingham, Nottinghamshire, England, NG1 1LL. We operate the website https://weareabstrakt.com/.
1.2. Contacting us. To contact us, telephone our customer service team at 0115 870 0511 or email us at email@example.com. How to give us formal notice of any matter under the Contract is set out in clause 16.2.
2. Our contract with you
2.1. Our contract. These terms and conditions (Terms) apply to the order by you and supply of Services by us to you (Contract). 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. Entire agreement. The Contract 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 or representation or assurance or warranty that is not set out in the Contract.
2.3. Language. These Terms and the Contract are made only in the English language.
3. Placing an order and its acceptance
3.1. Placing your order. Please confirm your agreement of the contents of the document headed Project Proposal (“Project Proposal”) or the link to the digital estimate via www.harvestapp.com to place your order. You may only submit an order by confirming your agreement to the Project Proposal. Our provision of the Project Proposal to you shall not constitute an offer, and such quotation contained in the Project Proposal is only valid for a period of 30 days from the date of its issue. Each order is an offer by you to buy the services specified in the order (Services) subject to these Terms.
3.2. Correcting input errors. You are encouraged to check the Project Proposal before submitting your order to us. Please check the Project Proposal carefully before confirming it. You are responsible for ensuring that the Project Proposal and any specification submitted by you is complete and accurate.
3.3. Acknowledging receipt of your order. After you place your order, you will receive an email from us acknowledging that we have received it, but please note that this does not mean that your order has been accepted. Our acceptance of your order will take place as described in clause 3.4.
3.4. Accepting your order. Our acceptance of your order takes place when we send an email to you to accept it (Order Confirmation), at which point and on which date (Commencement Date) the Contract between you and us will come into existence. The Contract will relate only to those Services confirmed in the Order Confirmation.
3.5. If we cannot accept your order. If you have already paid for the Services, we will refund you the full amount.
4. Our services
4.1. Descriptions and illustrations. Any descriptions or illustrations on our site are published for the sole purpose of giving an approximate idea of the services described in them. They will not form part of the Contract or have any contractual force.
4.2. Compliance with specification. Subject to our right to amend the Project Proposal and the specification (see clause 4.3) we will supply the Services to you in accordance with the Project Proposal and specification for the Services appearing in our Project Proposal at the date of your order in all material respects.
4.3. Changes to specification. We reserve the right to amend the specification of 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, and we will notify you in advance of any such amendment.
4.4. Reasonable care and skill. We warrant to you that the Services will be provided using reasonable care and skill.
4.5. Time for performance. We will use all reasonable endeavours to meet any performance dates specified in the Order Confirmation, but any such dates are estimates only and failure to perform the Services by such dates will not give you the right to terminate the Contract.
5. Your obligations
5.1. You hereby acknowledge that our ability to provide the Services is dependent on full and timely co-operation (which you agree to provide), as well as the accuracy and completeness of any information and data that you provide to us. Accordingly, it is your responsibility to ensure that:
(a) the terms of your order are complete and accurate;
(b) you cooperate with us in all matters relating to the Services;
(c) you promptly provide us with such information and materials we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(d) you comply with all applicable laws;
(e) you keep all of our materials, equipment, documents and other property (Our Materials) at your premises in safe custody at your own risk, maintain Our Materials in good condition until returned to us, and not dispose of or use Our Materials other than in accordance with our written instructions or authorisation.
5.2. If our ability to perform the Services is prevented or delayed by any failure by you to fulfil any obligation listed in clause 5.1 (Your Default):
(a) we will be entitled to suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services. In certain circumstances Your Default may entitle us to terminate the Contract under clause 13 (Termination);
(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.
6. Project review and amendments
6.1. Following completion of each milestone, we will provide confirmation of the milestone’s completion to you, including the deliverables (if any) relating to the Services (the Draft Notice).
6.2. Following the service of a Draft Notice, you acknowledge that you may inspect the deliverables and review the content, appearance and functionality.
6.3. If following an inspection of the deliverables, you (acting reasonably) claim that there are items which should be reasonably amended or changed, you shall, within 21 days of service of the Draft Notice, request in writing that such reasonable amendments or changes take place (the Amendment Request).
6.4. You acknowledge that an Amendment Request shall include detailed instructions, which are sufficiently clear, accurate and complete, to allow us to carry out the amendments pursuant to the Amendment Request. Where you fail to provide sufficiently detailed instructions which are sufficiently clear, accurate and complete, we may, in our sole discretion, refuse to carry out such amendments.
6.5. You acknowledge that you are entitled to submit only one Amendment Request per Contract and any further amendments required shall take place further to a new Project Proposal.
6.6. You acknowledge that unless you comply with the obligation to notify us within 21 days (as outlined in clause 6.3 above) you will be deemed to have accepted and approved the deliverables and Services.
7.1. In consideration of us providing the Services you must pay our charges (“Project Fee(s)”) in accordance with this clause 7.
7.2. The Project Fee(s) are the prices quoted in the Project Proposal at the time you submit your order.
7.3. If you wish to change the scope of the Services after we accept your order, and we agree to such change, we will modify the Project Fees accordingly.
7.4. We take all reasonable care to ensure that the prices stated for the Services are correct at the time when the relevant information was entered into the system. However, please see clause 7.6 for what happens if we discover an error in the price of the Services you ordered.
7.5. Our Project Fees are exclusive of VAT. 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 Project Fees.
7.6. It is always possible that, despite our reasonable efforts, some of the Services on our site may be incorrectly priced. Where the correct price for the Services is less than the price stated on in our Project Proposal, we will charge the lower amount. If the correct price for the Services is higher than the price stated on our site, we will contact you as soon as possible to inform you of this error and we will give you the option of continuing to purchase the Services at the correct price or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing. However, if we mistakenly accept and process your order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may cancel supply of the Services and refund you any sums you have paid.
8.1. Payment for the Services is in advance. We will send you an electronic invoice you for the initial payment upon acceptance of your order prior to any work commencing, and will provide further electronic invoices prior to the start of each subsequent milestone as set out in the Project Proposal. If milestones are not outlined in the Project Proposal they will be as follows:
- Project commencement - 50%
- Approval of design - 25%
- Approval of development - 25%
8.2. You must pay each invoice submitted by us within 15 days of the date of the invoice in full and cleared funds.
8.3. You must pay for the Services by way of bank transfer.
8.4. Time for payment shall be of the essence of the Contract.
8.5. If you fail to make a payment under the Contract by the due date, then, without limiting our remedies under clause 13 (Termination), 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 under this clause 8.4 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
9. Intellectual property rights
9.1. 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.
9.2. We agree to grant you a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the deliverables specified in your order (excluding materials provided you) for the purpose of receiving and using the Services and such deliverables in your business. You may not sub-license, assign or otherwise transfer the rights granted in this clause 9.2.
9.3. You agree to grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you to us for the term of the Contract for the purpose of providing the Services to you.
10. How we may use your personal information
10.1. We will use any personal information you provide to us to:
(a) provide the Services;
(b) process your payment for the Services; and
(c) inform you about similar products or services that we provide, but you may stop receiving these at any time by contacting us.
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. Limitation of liability: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
12.1. 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) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
12.2. Subject to clause 12.1, we will not be liable to you, whether in contract, tort (including negligence), for 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; and
(g) any indirect or consequential loss.
12.3. Subject to clause 12.1, our total liability to you arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to 100% of the total Project Fees paid under the Contract.
12.4. We have given commitments as to compliance of the Services with the relevant specification in clause 4.2. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
12.5. 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.
12.6. This clause 12 will survive termination of the Contract.
13. Termination, consequences of termination and survival
13.1. Termination. 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 7 days of you 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 you entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business;
(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.
13.2. Consequences of termination
(a) On termination of the Contract you must return all of Our Materials and any deliverables specified in your order which have not been fully paid for. Until they have been returned, you will be solely responsible for their safekeeping and must not use them for any purpose unconnected with the Contract.
(b) Termination of the Contract will not affect our rights and remedies that have accrued as at termination.
13.3. Survival. 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.
14. Events outside our control
14.1. 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 (Event Outside Our Control).
14.2. 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. We will arrange a new date for performance of the Services with you after the Event Outside Our Control is over.
14.3. You may cancel the Contract affected by an Event Outside Our Control which has continued for more than 90 days. To cancel please contact us. 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 occurrence of the Event Outside Our Control.
You must not attempt to procure services that are competitive with the Services from any of our directors, employees or consultants, whether as an employee or on a freelance basis, during the period that we are providing the Services to you and for a period of six months following termination of the Contract.
16. Communications between us
16.1. When we refer to "in writing" in these Terms, this includes email.
16.2. 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 email.
16.3. 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.
16.4. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
16.5. The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
17.1. 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.
17.2. Variation. Any variation of the Contract only has effect if it is in writing and signed by you and us (or our respective authorised representatives).
17.3. 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, and that will not mean that we will automatically waive any right related to any later default by you.
17.4. 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.
17.5. Third party rights. The Contract is between you and us. No other person has any rights to enforce any of its terms.
17.6. Governing law and jurisdiction. The Contract is governed by English 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 English courts.