1. GENERAL
1.1 These conditions apply to all present and future transactions for the supply of services by Phat Media to the exclusion of any terms and conditions stipulated by the Customer in any other agreement.
1.2 These conditions, the quotation and the invoice constitute the entire agreement between Phat Media and the Customer for the supply of services. The Business employees or agents of Phat Media are not authorised to make any representations concerning the services unless confirmed by Phat Media in writing. The Customer acknowledges that it does not rely upon and waives any claim for breach of any representations which are not so confirmed.
1.3 These conditions may not be varied other than in writing by Dean Rowley and Felix Lee.
2. DEFINITIONS
“Work” means the work which Phat Media has agreed to carry out or the services which Phat Media has agreed to carry out in the quotation and shall include the supply to the Customer of any website, domain name, artwork, or any other goods or services.
3. SUPPLY
3.1 On receipt by Phat Media of acceptance of the quotation by the Customer Phat Media agrees to accept the work in accordance with the quotation.
3.2 Any advice or recommendation given by Phat Media to the Customer as to the application or use of the Work is followed or acted upon entirely at the Customer’s own risk and Phat Media shall not be liable for any consequences arising from any such advice or recommendation.
4. DELIVERY & PAYMENT
4.1 Delivery of work shall be accepted when tendered and thereon or if earlier on notification that the work has been completed, payment shall become due.
4.2 On receipt by Phat Media of acceptance of the quotation by the Customer the Company agrees to accept the work in accordance with the quotation.
4.3 Any advice or recommendation given by Phat Media to the Customer as to the application or use of the Work is followed or acted upon entirely at the Customer’s own risk and Phat Media shall not be liable for any consequences arising from any such advice or recommendation.
4.4 Unless otherwise specified the price is for delivery of the work to the Customer’s address as set out in the quotation. A charge may be made to cover any extra costs involved for delivery to a different address.
4.5 Should expedited delivery be agreed Phat Media reserves the right to charge an additional sum.
4.6 Any dates quoted for the completion of Work by Phat Media are approximate only and Phat Media shall not be liable for any delay howsoever caused.
5. TERMS
5.1. Phat Media shall be entitled to invoice the Customer for all work undertaken on or at any time after payment shall become due.
5.2 Payment shall unless otherwise agreed in writing be made in full without any deduction or set-off within 14 days of the date of the invoice.
6. WEB SITE LINK
6.1 The Customer shall allow Phat Media when carrying out the work to permanently insert into the source code comments Phat Media’s name, author’s name and URL.
6.2 The Customer shall allow Phat Media after completing the Work to permanently insert into Phat Media’s own website a link to the work from the Customers own website.
7. CANCELLATION OR DELAY
7.1 Should the Customer change, reject, cancel or stop any or all of the provisions contained in the quotation then Phat Media shall be entitled to charge for all or any work already carried out in accordance with the terms of the quotation or any further instructions from the Customer including labour and any other additional costs, charges or expenses incurred by Phat Media as a result of the cancellation.
7.2 Should Work be suspended at the request of or delayed through any default of the Customer for a period of 30 calendar days, Phat Media shall then be entitled to payment for all or any work already carried out in accordance with the terms of the quotation or any further instructions from the Customer including labour, materials used or specifically ordered on the Customer’s behalf and any other additional costs including storage.
8. OWNERSHIP & RISK
Services supplied by Phat Media will remain Phat Media’s property until the Customer has paid for them and discharged all other debts owing to Phat Media in particular all files used in the production of client websites remain the property of Phat Media until full payment is received. Phat Media reserve the right to terminate the hosting (if provided) or remove all files from webspace if hosting is not provided of any client website if full payment is not received within the terms of invoice.
9. LIMITATIONS OF LIABILITY
9.1 While Phat Media makes reasonable endeavours to carry out its obligations, Phat Media shall not be liable in contract or tort or under any head of legal liability for any damages costs claims expenses or interest arising out of the performance or alleged non-performance of work to be undertaken in accordance with the quotation or these terms and conditions by Phat Media and in particular (without limiting the foregoing) shall not save where otherwise required by law or Order of the Court accept liability for:
(a) consequential loss or damage of any kind including loss of turnover, sales, revenue or profits unless the type of loss or damage was specifically drawn to the attention of Phat Media at the date of the quotation.
(b) any claim for an amount in excess of the agreed price.
9.2 Insofar as is permitted by law where work is defective for any reason, including negligence, Phat Media liability (if any) shall be limited to rectifying such defect. Where Phat Media performs its obligations to rectify defective work under this condition the Customer shall not be entitled to any further claim in respect of the work done nor shall the Customer be entitled to any furtherclaim in respect of the work done nor shall the Customer be entitled to treat delivery thereof as a ground for repudiating the contract, failing to pay for the work or cancelling further deliveries.
10. SPECIFICATIONS AND COPYRIGHT
10.1 The Customer shall be responsible for ensuring the accuracy of any specifications submitted by the Customer and for supplying any specifications or information relating to the Workwithin a sufficient time to enable Phat Media to complete the Work in accordance with its terms.
10.2 The Customer shall indemnify Phat Media against all loss, damages, costs and expenses awarded against or incurred by Phat Media in connection with, or paid or agreed to be paid by PhatMedia in settlement of any claim for infringement of Patent, Copyright, design, Trademark or industrial or intellectual property rights of any other person which results from Phat Media use of the Customer’s specification.
10.3 The Customer shall ensure that any necessary permissions, authorisations, licences or consents are obtained at its own expense prior to the Work being carried out and shall indemnify the Customer against all loss, damages, costs and expenses awarded against or incurred by Phat Media in connection with any claim arising as a result of the Customer’s failure to obtain any such permissions.
10.4 Copyright/ownership of the product is retained by Phat Media until payment is made in full at the contracted price.
10.5 The Customer shall continue to own sole copyright of any text or graphics provided to Phat Media in connection with the Work that are unique and exclusive to the Customer once the above has been settled.
10.6 Phat Media shall own and continue to own sole copyright of any language, HTML, java script, meter content or key words, graphics, scripts or other creative work produced by Phat Media as part of the works. Upon receipt of the final payment due under the terms of the quotation the Customer shall received ownership of any text, images and custom built scripts within the website.
10.7 Phat Media shall own the licences of all components used within the website (such as J-Mail, ASP Upload & ASP JPEG).
11. INSOLVENCY
Without prejudice to other remedied, if the Customer become insolvent (that is if it is unable to pay its debts or has a winding up petition issued against it or has a receiver, administrator or administrative receiver appointed to it) Phat Media shall have the right not to proceed further with any work for the Customer and shall be entitled to charge for work already carried out (whether completed or not) and material purchased for the customer, such charge to be an mmediate debt due to him Any unpaid invoices shall become immediately due for payment.
12. CONFIDENTIALITY
The Customer shall keep in confidence any information of a confidential nature relating to the quotation obtained from Phat Media and must not disclose such information to any other purchaser without Phat Media’s prior written consent provided that this restriction does not apply to information which is already in the public domain, lawfully obtained from a third party which is free to disclose required to be disclosed by law or a competent authority in the lawful possession of the Customer prior to disclosure. The restrictions in this paragraph shall survive the termination or expiry of this contract.
13. DOMAIN NAME REGISTRATION
13.1 Phat Media does not carry out any investigation as to whether the Customer is entitled to register or have any rights to the Domain Name. By registering the Domain Name Phat Media are not acknowledging that the Customer has any rights in the name comprised in the Domain Name and Phat Media is not authorising the Customer to use the Domain Name in the course of trade. Whilst Phat Media shall use its reasonable endeavours to register any requested Domain Name it is unable to guarantee registration of the same. Confirmation of registration shall be given by Phat Media to the Customer as soon as possible. Until that time the Customer cannot assume that registration has been effected.
13.2 Phat Media accepts no on-going responsibility for re-registering the Domain Name after
the initial registration period has expired, nor does it accept responsibility for ensuring that the Domain Name remains in force during the initial registration period.
13.3 The Customer shall indemnify Phat Media against all loss, damages, costs and expenses awarded against or incurred by the Company in connection, or paid or agreed to be paid by Phat Media in settlement of any claim for infringement of the rights of any third party in applying for the internet Domain Name or for acting for the Customer in connection with such application.
13.4 Phat Media acts as the Customers agent only. The Contract for registration of the Domain Name shall be or shall deemed to be between the Customer and the naming authority.
14. FORCE MAJEURE
The Business shall not be liable in respect of any shortage or failure to supply where such shortage of or failure is due to act of God or any other reason beyond the control of the Business and the Business in such circumstances will not be liable in respect of any consequential loss to the Client.
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