Terms & Conditions

Anthony White Trading as Magic Beans Design and Marketing Terms and Conditions of Business.

Anthony White agrees to supply the services agreed with you in accordance with the terms set out below. You should read these carefully. They constitute a legally binding contract at the point that you have agreed to engage me to provide services for you. If you have any questions, please contact me on 0843 886 0647.

Definitions
1. In these Terms, expressions are defined in Appendix 1.
2. In these Terms, the following rules apply:
  1. A person includes a natural person, corporate or unincorporated body.
  2. Any reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted.
  3. The singular includes the plural and vice versa and the masculine includes the feminine and vice versa.
  4. The headings are for reference only and do not affect the interpretation of the Terms.
  5. References to “I”, “me” or “my” etc are to Anthony White of 37 Collins Avenue, Stamford, Lincolnshire, PE9 1FH.
  6. References to “you” or “your” etc are to the person commissioning the Services but, where this is a corporate entity, includes also the individual providing instructions in respect of the Services.

Basis of Contract
1. Under the Terms, I have agreed, in consideration for the Fee, to provide the Services in accordance with the Design Brief.
2. My first invoice constitutes an offer to you to provide the Services subject to these Terms. Payment of my first invoice or when requested, a written acknowledgment, constitutes acceptance of these Terms, whereupon the Contract comes into force.
3. I will not accept any variation to these Terms unless it is expressly agreed by me in writing.
4. These Terms apply to the Contract to the exclusion of any other terms that you may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
5. I may withdraw any Quote or tender at any time before the Contract is made.

Design Services
1. It is my preference that you provide me with a Design Brief and, where your instructions are particularly complicated or atypical, I reserve the right to require this.
2. Where you do so, I shall provide the Services in accordance with the Design Brief, insofar as it is reasonably practicable to do so.
3. It is your responsibility for ensuring that the Design Brief is complete and accurate.
4. Where you do not provide a Design Brief, I shall carry out the Services on your behalf by following your oral instructions insofar as is reasonably possible but, in this case, I cannot be compelled to re-perform any part of the Services if they do not conform to your instructions and you will remain liable for the Fee.

Acceptance
1. You are required to promptly check and approve any design and marketing work carried out as part of the Services.
2. You must notify me of any matters concerning the quality or content of the Services within 7 business days of any part of the Works being carried out. If you do not do so, you will be deemed to have approved such part of the Works.
3. I am not responsible for any errors, including typographical errors in text.
4. With regard to design work that is to be printed;
  1. if a printed proof has not been supplied by me, it is then your duty to obtain a printed proof to verify the Works quality and exactness to your satisfaction.
  2. Magic Beans Design and Marketing will not be held responsible for any incurred cost for reprinting.
5. With regard to website design and online marketing work:
  1. I will provide you access to the Ledger, which details any Works. You can view your Ledger at any point by an e-mail request to info@magicbeansservices.co.uk.

Fees and Payment of Fees
1. Any Quote is an estimation only and not a fixed price, unless specifically stated otherwise.
2. You shall be charged for supply of the Services by reference to the time I spend on the Project calculated in accordance with the Hourly Rate.
3. Unless otherwise agreed, you will be required to pay 40% of the Quote on account before I commence work on the Project. Where this is the case, what you pay will be a non-refundable deposit and may be retained by me upon the termination of the Contract (howsoever terminated).
4. I will deliver invoices for the work that I have carried out on an interim basis at my discretion but usually when the value of the work carried out reaches approximately £350 or the Services have been completed.
5. Payment of the Fees shall be made by you to me within 30 days of the date of my invoice without deduction or set-off.
6. I am not registered for VAT.
7. If you do not make a payment by the date stated on my invoice or as otherwise provided for in these Terms, then I shall be entitled to:
  1. Charge interest on any outstanding amount at a rate of 5% a year above the base lending rate of Barclays Bank Plc, accruing daily;
  2. Require you to pay, in advance, for any Services that have not yet been performed;
  3. Require you to make immediate payment for any Services not yet invoiced for;
  4. Not perform any further Services on your behalf;
  5. Charge you an administration fee of £30; and / or
  6. Where the Works (or any part thereof) have been published in the public domain (such as a website), remove or decommission the same until payment is received in full. In order to protect my interests, you agree that I may remove or decommission the whole of a website, even if the Services only relates to a part of it.
8. I reserve the right to increase the Hourly Rate from time to time.

Time estimates
1. Any date(s) quoted for completion of the Services (or any part thereof) are approximate only and not capable of amounting to a warranty or representation. If you require work to be done by a particular date then I would use reasonable endeavours to achieve this but cannot guarantee doing so.
2. If I agree to complete work by a certain date then I accept no liability if this is not achieved, howsoever caused. However, if, in order to achieve completed work by a certain date, it becomes necessary to work outside of normal working hours (i.e. 9am – 5pm Monday to Friday), then you may be charged at time and a half of the Hourly Rate.

Client’s Obligations
1. You shall provide the Design Brief or any oral instructions in a way that reasonably enables me to understand what you want to achieve.
2. You shall respond within a reasonable time to any questions that I may have in respect of the Services or the Design Brief and cooperate with me insofar as is reasonably necessary to enable me to perform the Services in a timely manner.
3. You agree that I may include a small credit comprising of no more than one line of text and a logo and, where work is published online, a link to my website, on any advertising or promotional material I work on as part of the Services, including any website I design or modify.

Confidentiality
1. Each party (“receiving party”) shall keep the Confidential Information of the other party (“supplying party”) confidential and secret. The receiving party shall only use the Confidential Information of the supplying party for the purposes of the Project.
2. The receiving party shall inform its officers, employees and agents of the receiving party’s obligations under the provisions of this clause, and ensure that the same meet those obligations.
3. The obligations set out in this clause do not apply to information that:
  1. was known by or in the possession of the receiving party before it was provided to the receiving party by the providing party;
  2. is, or becomes publicly available through no fault on the part of the receiving party;
  3. was developed by the receiving party; or
  4. is required to be disclosed by order of a Court of competent jurisdiction.
4. This clause will survive the termination of the Contract.

Use of Sub-Contractors

You acknowledge that I am permitted to use other persons to provide some or all of the Services.
Intellectual Property and Materials
1. Where you supply me with text, images or other data in connection with the Project, you warrant that you hold the appropriate intellectual property rights therein and you are not infringing the rights of any third party by doing so. You will indemnify and keep me indemnified against any claims by third parties for the infringement of such intellectual property rights.
2. All intellectual property rights and Materials that are prepared, conceived or developed by me as part of the supply of the Services, whether or not used by you, remain my sole and exclusive property subject to the licence granted to you under clause (c) below.
3. By virtue of this clause, and you are granted a non-exclusive licence to use the Materials for the purposes only of the promotion of your business or as otherwise agreed between us.
4. The licence does not permit you to publish, print, distribute, exploit, reproduce or otherwise licence the Materials for the benefit of any third party without my express written permission.
5. I may revoke the licence on written notice if I consider that you are in breach of the licence terms.
6. Where any text, image or other data used in the Materials, whether supplied by you or me, infringes the intellectual property rights of any third party, you agree to permit me to remove and/or replace the same text, image or data from the Materials as may be necessary to prevent that the infringement of third party intellectual property rights.
7. You undertake to indemnify me and keep me indemnified (on a full indemnity basis) and hold me harmless in respect of any claims, damage, loss or cost arising directly or indirectly from the infringement of any third party intellectual property rights associated with the Materials, howsoever caused.

Warranties, Liability and Indemnities
1. Nothing in the Terms shall limit or exclude my liability for:
  1. Death or personal injury caused by my negligence.
  2. Fraud or fraudulent misrepresentation.
  3. Breach of the terms implied by Section 12 of the Sale of Goods Act 1974.
  4. Any other matter in respect of which it would be unlawful for me to exclude or restrict liability.
2. I will perform the Services on your behalf with reasonable care and skill.
3. Save for the promise I have made at clause 11(b) above, I make no representation or warranty of any kind, whether express or implied, concerning the Services, the Design Brief or the Project.
4. If I perform the Services (or any part of the Services) negligently or materially in breach of the contract then, if requested by you, I will re-perform the relevant part of the Services, subject to the provisions of this clause. You must request re-performance within 3 months of identifying any defect in the Services and in any event within 12 months of the date upon which I notified you that the Services were complete. Otherwise, I am not liable.
5. I do not provide any representation or warranty that any result or objective can be or will be achieved or attained at all or by any particular date through performance of the Services.
6. I shall not be liable to you in any circumstances for any Consequential Loss.
7. Each of the parties to the Contract acknowledges that, in entering into the Contract, it does not do so in reliance on any representation, warranty or other provision except as expressly provided for in the contract.
8. My total liability to you in respect of any losses arising under or in connection with the Project, whether in contract, tort, breach of statutory duty, or otherwise, shall in no circumstances exceed my original estimation of Fee set out in the Quote.

Termination
Either party may terminate the Contract at any time on written notice served on the other, whereupon:
1. You shall be liable to pay for any Services supplied up to the date of termination, and for all expenditure falling due for payment after the date of termination from commitments reasonably and necessary incurred by me for the performance of the Services prior to the date of termination.
2. I may, at my absolute direction, revoke the license given to you in accordance with clause 10 above concerning the Materials without compensation.
You will notify me, in writing, if you want to terminate our working relationship beyond any Works we have completed for you; resulting in the total deletion of personal data that we may be storing, for your safekeeping or future communications, including passwords, files, contact details etc.
Force Majeure

Neither party shall have any liability under or be deemed to be in breach of this agreement for any delays or failures in performance of this contract that result from circumstances beyond the reasonable control of that party. The party affected by such circumstances shall promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they ceased to do so. If such circumstances exist for a continuous period of more than 6 months, either party may terminate this agreement by written notice to the other party.
Testing and Acceptance of Websites
1. If I request it, you agree to carry out the acceptance tests within 14 days of delivery and installation of a new website. Selection of the acceptance tests shall be at your discretion but is subject to my approval, which I will not unreasonably withhold.
2. I reserve the right to reject the acceptance tests suggested by you if they require the website to operate in a manner not provided for in the Design Brief. I shall be deemed to have accepted the acceptance tests if I neither approve nor reject them within 7 days of their disclosure.
3. If, following the acceptance tests, you reasonably consider that the website has materially failed to pass, you shall promptly give notice to me in writing, specifying the reasons for which you consider that the website has failed. On receipt of such notice, I will carry out diagnostic work free of charge to determine the cause of the failures and advise you accordingly. I shall make alterations to the website as is reasonably necessary to ensure that it passes the acceptance tests. Following the making of any such alterations, you shall repeat the acceptance tests within 7 days of me notifying you that the website is ready to be tested.
4. If the website fails the acceptance tests and on investigation pursuant to clause 14(c) above, this proves to be a result of an error by you, I shall be entitled to charge for the costs of the investigation and making the necessary changes by reference to the Hourly Rate.
5. If you do not carry out the acceptance tests in accordance with the Contract, you will be deemed to have accepted the website as it stands. This means that, in the event that you wish me to make any alterations to it to repair any defect, howsoever arising, I reserve the right to charge you in accordance with the Hourly Rate.
6. Risk or loss or damage of any kind to the website, any associated software or coding, shall pass to you upon successful completion.

Website Hosting
1. I offer a limited in-house hosting service through an outsourced virtual server. Ivdo not guarantee continuous service and will not accept any liability for any loss of service, howsoever caused.
2. I may require you to change the type of hosting account used if that account is deemed by me to be unacceptable because of poor service, lack of bandwidth or any other insufficiency to support a website.
3. Any fees associated with website hosting are due at the commencement of any period of service and are non-refundable. It is your responsibility to settle any fees of any third party hosting organisation. It is also your responsibility to renew any domain names at your own cost.

Domain Registration

I cannot guarantee the availability of any particular domain name. I will use reasonable endeavours to register a domain name on your behalf if you request me to do so, subject to any applicable fee, but you acknowledge that registration is outside of my control and not guaranteed.
Search Engine Optimisation
1. Reference to the term “optimisation” means a process of search engine optimisation techniques applied in part or on an ongoing basis. It is not intended to imply that a website will reach or maintain any guaranteed status on any internet search engine.
2. Due to the infinite number of considerations that search engines use when determining a site’s ranking, I cannot guarantee any particular placement or outcome through this service. Acceptance of any search engine cannot be guaranteed and when a site is accepted, the time it takes to appearance in a search result varies from one search engine to another. Rankings will also vary as new sites are added.

Miscellaneous provisions
1. ASSIGNMENT Neither of us may assign, transfer or charge the Contract or any of the rights, obligations or entitlements contained within it, without the prior written permission of the other, save that I may assign or transfer the Contract to a third party of which I have majority control of.
2. ENTIRE AGREEMENT The Contract contains the whole agreement between us and supersedes any prior written or oral agreement in relation to the Project. You confirm that you have not entered into the Contract upon the basis of any representations that are not expressly incorporated into the Contract. No oral explanation or oral information given by either of us shall alter or affect the interpretation of the Contract.
3. NOTICES Any notice due or required to be served under the Contract shall be in writing and sent by recorded delivery to the other at the address specified by them from time to time.
4. NO PARTNERSHIP Nothing in the Contract shall be deemed to constitute a partnership between us, nor the relationship of employer and employee under a contract of service, nor the relationship of principal and agent.
5. SEVERANCE If any provision of the Terms is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable, or if indications of this are received by either of us from any relevant competent authority, we shall amend that provision in such reasonable manner as achieves the intention of the parties without illegality, or at my discretion, that provision may be severed from the Contract, and in either event, the remaining provisions of the Contract shall remain in full force and effect.
6. THIRD PARTIES Nothing contained within the Contract is intended to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any third party.
7. WAIVER No delay in enforcing any right under the Contract, nor charging for work carried out, shall be deemed to be a waiver of that right.

Governing Law

The Contract shall be construed in accordance with the law of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English courts.
Director’s Personal Guarantee

Where you are a company limited by shares or guarantee, the individual person commissioning the Services, being a director or officer of that company (unless they advise otherwise), agrees, by virtue of this Agreement, to meet the company’s liabilities established in the Terms on demand, including (but not limited to) payment of the Fee.

APPENDIX 1

Defined Terms

Contract	Means the legally binding agreement between you and me to perform the Services in accordance with the Terms.
Design Brief	Means the document or written instructions provided by you setting out the detailed requirements for the specific Services to be provided by me.
Fee	Means the cost of the Services for which you are responsible.
Hourly Rate	Means £25.00 per hour or whatever rate is specified from me from time to time.
Intellectual Property	Means any and all registered design, unregistered design rights, data rights base rights, copyright, rights in respect of confidential information and all other intellectual property rights.
Project	Means the project I am engaged as specified and defined in the Design Brief.
Materials	Means documents, specifications, designs, codes, models, data, illustrations, drawings, photographs, Videos, images or other text (in whatever form or medium or format) whether on paper or electronic) and/or copies thereof.
Quote	Means the written documents supplied by me setting out the estimate for the fee.
Services	Means the Design and Marketing Services agreed between us from time to time.
Terms	Means the Terms and Conditions set out in this Agreement.

Your Name:
Email:
Phone:
Message: