The definitions and rules of interpretation in this condition apply in these terms and conditions.
1.1 Definitions:
“Contract” means the contract between the Supplier and the Customer for the supply of the Services in accordance with these conditions;
“Customer” means the person, firm or company who purchases Services from the Supplier;
“Deliverables” means all products and materials developed by the Supplier in relation to the Project in any media, including, without limitation, advertising, branding, digital, print and video (including drafts);
“Estimate” means the estimate provided by the Supplier to the Customer describing the Project and setting out, amongst other things: (i) the fee and payment structure; and, if appropriate, (ii) the estimated timescale; and (iii) the responsibilities of each of the parties;
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including without limitation all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Order” means the Customer’s written acceptance of the Supplier’s Estimate;
“Post Completion Support Period” means the period expiring 14 days after the Supplier has provided the Customer with the editor account details for the relevant Project;
“Pre-existing Materials” means materials which existed before the commencement of the Project;
“Project” means the project as described in the Estimate;
“Services” means the services to be provided by the Supplier under the Contract;
“Supplier” means Omnia Scotland Ltd (trading as Omnia Creative) incorporated under the Companies Acts (Registered Number SC308945) and having its registered office at Drumsheugh Toll, 2 Belford Road, Edinburgh EH4 3BL;
“VAT” means value added tax chargeable under Scots law for the time being and any similar additional tax.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.3 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular and a reference to one gender shall include a reference to the other genders.
1.4 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.5 A reference to writing or written includes email.
2. Basis of Contract
2.1 The Order shall be deemed to be accepted when the Supplier issues written acceptance of the Order, at which point and on which date the Contract shall come into existence (“Commencement Date”). These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s presentation files and proposals, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.3 Any Estimate given by the Supplier shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.
3. Supplier’s obligations
3.1 The Supplier shall use reasonable endeavours to manage and complete the Project, and to deliver the Deliverables to the Customer, in accordance in all material respects with the Estimate and to meet any performance dates if specified in the Estimate. However, any such dates shall be estimates only and time shall not be of the essence of the Contract.
3.2 The Supplier reserves the right to amend the scope of the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.3 In respect of digital Projects:
3.3.1 the Supplier will undertake compatibility testing in respect of the latest versions of Chrome, Firefox, Safari and Edge browsers on Windows (7, 8 and 10), Mac OS X (10.11), iOS (9.0) on iPad only and Android (5.0 and 6.0) on tablets only. It will be the responsibility of the Customer to organise and carry out any additional end user testing. The Supplier can provide such additional testing on request and for a further charge;
3.3.2 the Supplier will fix any material bugs provided that the Customer brings such issues to the Supplier’s attention within the Post Completion Support Period. Any further changes or support will be carried out or provided in accordance with the Supplier’s hourly rates as set out in the Estimate; and
3.3.3 upon completion of the project the Supplier will provide the Customer with the relevant editor account details to facilitate content addition, editing and testing;
3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
3.5 The Supplier will endeavour to archive all work electronically but cannot guarantee that files will be retrievable for future use. The Supplier will not be liable for any lost or corrupt files. When older files are re-used the Supplier reserves the right to charge a fee in accordance with its hourly rates, to be mutually agreed with the Customer, for the time taken to convert them to current data formats.
3.6 Where specifically requested by the Customer, the Supplier will provide print management services at an additional charge. Print management services include supplying print quotations, contracting with a third-party printer to provide printing services, delivering artwork to the third-party printer and liaising with the printer to complete the printing service required. The printing services supplied will be subject to the terms and conditions of the third-party printer and the Supplier is not liable for any delays caused by the third-party printer. The Customer is responsible for checking the quality and quantity of any materials received from the third-party printer.
4. Customer’s obligations
4.1 The Customer shall:
4.1.1 co-operate with the Supplier in all matters relating to the Project;
4.1.2 provide in a timely manner such access to the Customer’s data, information and other materials as is requested by the Supplier;
4.1.3 check all proofs provided by the Supplier for errors in copy and content. The Customer shall have no remedy against the Supplier for any loss incurred as a result of the Customer’s failure to highlight an issue in a final proof;
4.1.4 check that the quantity of products supplied by the Supplier meets the quantity of products requested. The Supplier must be informed of any discrepancy by 5pm of the next working day following delivery of the final form
Deliverables;
4.1.5 provide any materials to be incorporated into the deliverables in such format, and by such means as, directed by the Supplier from time to time. Any images, animations, content or videos provided by the Customer must be of sufficient quality to be incorporated into the deliverables without requiring subsequent image processing.
4.1.6 ensure that it holds the necessary Intellectual Property Rights to incorporate any materials it provides to the Supplier in the deliverables.
4.2 The Customer shall indemnify and hold the Supplier harmless in any and all claims resulting from the Customer not having obtained the necessary Intellectual Property Rights to use material that is has provided to the Supplier for inclusion in the Deliverables.
4.3 If the Supplier’s performance of its obligations under the Contract are prevented or delayed by any act or omission of the Customer or the Customer’s agents, sub-contractors or employees, the Customer shall in all circumstances be liable to pay to the Supplier on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation and loss of opportunity to deploy resources elsewhere), subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
5. Change control
5.1 If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing. On a change being requested, the Supplier shall provide a written estimate to the Customer of the likely time required to implement the change, any variations to the Supplier’s charges arising from the change and any other impact of the change on the terms of the Contract.
5.2 If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Estimate and any other relevant terms of the Contract to take account of the change.
6. Charges and payment
6.1 Clause 6.2 shall apply if the Services are to be provided on a time-and-materials basis. Clause 6.3 and Clause 6.4 shall apply if the Services are to be provided for a fixed price. Clause 6.5 shall apply if the Services are to be provided on a retainer basis. The remainder of this Clause 6 shall apply in either case.
6.2 Where the Services are provided on a time-and-materials basis:
6.2.1 the charges payable for the Services shall be calculated in accordance with the Supplier’s hourly rates as detailed in the Estimate;
6.2.2 the Supplier shall ensure that all members of the project team complete time sheets recording time spent on the Project, and the Supplier shall use such time sheets to calculate the charges covered by each monthly invoice referred to in Clause 6.2.3; and
6.2.3 the Supplier shall invoice the Customer monthly in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this Clause 6. Each invoice shall set out the time spent on the project and provide a detailed breakdown of any expenses and materials (where applicable). Any relevant receipts will be made available to the Customer on request.
6.3 Where the Services are provided for a fixed price, the total price for the Services shall be the amount set out in the Estimate. The price shall be paid by the Customer as set out in the Estimate, which may include an upfront payment of part or all of the price prior to commencement of the Services.
6.4 Any fixed price contained in the Estimate includes (unless expressly excluded in the Estimate):
6.4.1 the cost of any other ancillary expenses reasonably incurred by the project team in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by the Supplier for the supply of the Services.; and
6.4.2 VAT.
6.5 If the Services are to be provided on a retainer basis the charges payable for the Service shall be as set out in the retained services agreement between the Customer and the Supplier.
6.6 The Customer shall pay each invoice submitted to it by the Supplier in full, and in cleared funds, within 30 days of receipt. Time for payment shall be of the essence of the Contract.
6.7 A processing fee of 2% of the payment amount will be charged on any invoices the Customer pays through Stripe.
6.8 Without prejudice to any other right or remedy that the Supplier may have, if the Customer fails to pay the Supplier on the due date the Supplier may:
6.8.1 charge interest on such sum from the due date for payment at the annual rate of 8%, accruing on a daily basis and being compounded monthly until payment is made, whether before or after any judgment; and
6.8.2 suspend all Services until payment has been made in full.
6.9 In the event that the Customer fails to progress a project for a period of 90 days (i.e. the Customer does not respond to a visual design proposal of proof), without prejudice to any other right or remedy that the Supplier may have, the Supplier may submit an invoice to the Customer for the work done and costs incurred to date based on the Supplier’s hourly rates in force at the time.
6.10 All payments payable to the Supplier under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
6.11 All amounts due under this agreement shall be paid by the Customer to the Supplier in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
7. Intellectual Property Rights
7.1 All Intellectual Property Rights and all other rights in the Deliverables shall be owned by the Supplier. The Supplier hereby licenses all such rights to the Customer free of charge and on a non-exclusive, non-transferable and worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services as is envisaged by the parties. If the Supplier terminates the Contract under Clause 11.1 or Clause 11.2, this licence will automatically terminate.
7.2 The Customer acknowledges that the Customer’s use of rights in Pre-existing Materials, and where applicable images commissioned or purchased by the Supplier for inclusion in the Deliverables, is conditional on the Supplier obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer.
8. Confidentiality and supplier’s property
8.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that is or becomes publicly known other than through any act or omission of the receiving party, was in the other party’s lawful possession before the disclosure, is lawfully disclosed to the receiving party by a third party without restriction on disclosure or is independently developed by the receiving party, which independent development can be shown by written evidence.
8.2 Subject to Clause 8.4 and Clause 8.5, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
8.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
8.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 8.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
8.5 Notwithstanding the remainder of this Clause 8, the Supplier may use Deliverables that it has designed or produced, which may or may not include reference to the Customer or the Customer’s business, products or services, in any marketing materials advertising the Supplier’s services and on our website or social media for the Supplier’s own promotional and marketing purposes.
8.6 This Clause 8 shall survive termination of the Contract, however arising.
9. Data Protection
9.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this Clause 9, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
9.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor.
9.3 Without prejudice to the generality of Clause 9.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.
9.4 Without prejudice to the generality of Clause 9.1, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Contract:
9.4.1 process that personal data only on the documented written instructions of the Customer unless the Supplier is required by Applicable Laws to otherwise process that personal data. Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
9.4.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
9.4.3 ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
9.4.4 not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
9.4.4.1 the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
9.4.4.2 the data subject has enforceable rights and effective legal remedies;
9.4.4.3 the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
9.4.4.4 the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
9.4.5 assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
9.4.6 notify the Customer without undue delay on becoming aware of a personal data breach;
9.4.7 maintain complete and accurate records and information to demonstrate its compliance with this clause 9 and allow for audits by the Customer or the Customer’s designated auditor and immediately inform the Customer if, in the opinion of the Provider, an instruction infringes the Data Protection Legislation.
9.5 The Supplier may appoint third party processors of personal data under the Contract in accordance with its privacy policy.
10. Limitation of liability
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF THIS CLAUSE 10 (LIMITATION OF LIABILITY).
10.1 The following provisions set out the entire financial liability of the Supplier (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
10.1.1 any breach of the Contract howsoever arising;
10.1.2 any use made by the Customer of the Services, the Deliverables or any part of them; and
10.1.3 any representation, misrepresentation (whether innocent or negligent), statement or act or omission (including without limitation negligence) arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these conditions excludes the liability of the Supplier:
10.3.1 for death or personal injury caused by the Supplier’s negligence; or
10.3.2 for fraud or fraudulent misrepresentation.
10.4 Subject to Clause 10.2 and Clause 10.3:
10.4.1 the Supplier shall not in any circumstances be liable, whether in delict (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for, loss of profits, loss of business, depletion of goodwill or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss or corruption of data or information, or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
10.4.2 the Supplier’s total liability in contract, delict (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for the Services.
10.5 The Supplier shall not bear any liability for any loss or delay suffered by the Customer due to printing work undertaken by the Customer or any third party.
11. Termination
11.1 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:
11.1.1 the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
11.1.2 the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
11.1.3 the other party’s financial position deteriorates to such an extent that in the other party’s opinion its capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
11.2 The Supplier may terminate the Contract in the event that the Customer requests a change to the service which the Supplier considers to be immoral, offensive, illegal or likely to bring its reputation into disrepute.
11.3 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
11.4 Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
12. Force Majeure
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate the Contract by giving 10 days’ written notice to the affected party.
13. Waive
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14. Rights and remediess
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
15. Severance
If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
16. Entire agreement
16.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
17. Assignation
The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
18. No partnership or agency
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other.
19. Third party rights
This agreement does not give rise to any rights under the Contracts (Third Party Rights) (Scotland) Act 2017 to enforce any term of this agreement.
20. Notices
Any notice or other communication given to a party under or in connection with this contract shall be in writing.
21. Governing law and jurisdiction
The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by and construed in accordance with the law of Scotland.
Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).