AppDrawn Terms and Conditions
These terms and conditions ("Conditions") constitute a legally binding agreement between the Client and AppDrawn Limited (Company No. 10216258), whose registered office is at 44 Clarendon Road, Watford, WD17 1JJ, United Kingdom ("AppDrawn"), regarding any provision by AppDrawn of any services to the Client.
A full contract of business is available upon request.
1.1 In these Conditions:
'Client' means the person to whom AppDrawn has agreed to provide the Service in accordance with these Conditions;
'Contract' means the contract for the provision of the Service, which shall arise when the Client accepts AppDrawn's estimate or quotation or, alternatively, when AppDrawn in writing accepts an order from the Client;
'Document' includes, in addition to a document (including email and faxes) in writing, any design or other device embodying visual images and any disc, tape or other device embodying any data;
'AppDrawn Material' means any Documents or other materials, and any data or other information provided by AppDrawn relating to the Service including, without limitation, any designs and code produced as part of the Service;
'Specification' means the Document to which these Conditions are appended or any other Document issued by AppDrawn or approved by it in writing and which specifies the Services;
'Service' means the service or services to be provided by AppDrawn to the Client.
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2 Supply of the Service
2.1 The Supplier shall provide the Service to the Client subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such estimate or quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Client. Any changes or additions to the Service or these Conditions must be agreed in writing by AppDrawn and the Client.
2.2 The Client shall at its own expense supply AppDrawn with all necessary Documents or other materials, and all necessary data or other information relating to the Service, within sufficient time to enable AppDrawn to provide the Service in accordance with the Contract. The Client shall be responsible to AppDrawn for ensuring the accuracy of the terms of any order (including any Client Material) submitted by the Client, and for giving AppDrawn any necessary information relating to the Services within a sufficient time to enable AppDrawn to perform the Contract in accordance with its terms.
2.3 The Client shall at its own expense retain duplicate copies of all Client Material. AppDrawn shall have no liability for any loss of or damage to any Client Material, however caused.
3.1 The price of the Service shall be AppDrawn's estimated or quoted price.
3.2 AppDrawn reserves the right to increase the price of the Service to reflect any increase in the cost to AppDrawn which is due to any factor beyond the control of AppDrawn (such as, without limitation, any significant increase in the costs of labour or materials), any change in delivery dates, quantities or specifications for the Service which is requested by the Client, or any delay caused by any instructions of the Client or failure of the Client to give AppDrawn adequate information or instructions.
3.3 Unless otherwise stated, all charges quoted to the Client for the provision of the Service are exclusive of any Value Added Tax, for which the Client shall be additionally liable at the applicable rate from time to time.
3.4 Except as otherwise stated under the terms of any estimate or quotation, and unless otherwise agreed in writing between the Client and AppDrawn, all prices are given by AppDrawn on an ex works basis, and the Client shall be liable to pay AppDrawn's charges for transport, packaging and insurance.
3.5 AppDrawn shall be entitled to invoice the Client in respect of any agreed third party costs immediately following the date of a Contract and, in respect of all other aspects of the Service, on or following delivery of the Service, or, if provision of a Service is due to take longer than a month, at the end of each month, or at other times specified in writing by AppDrawn.
3.6 The price for the Service or other charges and any additional sums payable shall be paid by the Client (without any set off or other deduction) immediately on receipt of AppDrawn's invoice. The time of payment of the price shall be of the essence of the Contract.
3.7 If the Client fails to make any payment on the due date then, without prejudice to any other right or remedy available to AppDrawn, AppDrawn shall be entitled to:
(a) Cancel the Contract or suspend any further provision of any Service to the Client; and
(b) charge the Client interest (both before and after any judgment) on the amount unpaid, at the rate of four per cent per annum above the Barclays Bank base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
4.1 Any dates estimated for delivery of AppDrawn Materials are estimated based on the information available at time of estimate and AppDrawn shall not be liable for any delay in delivery, however caused. Time for delivery shall not be of the essence of the Contract. Deliveries may be made by AppDrawn in advance of any estimated delivery date.
4.2 Notwithstanding delivery and the passing of risk in AppDrawn Materials, or any other provision of these Conditions, the property in AppDrawn Materials shall not pass to the Client until AppDrawn has received in cash or cleared funds payment in full of the price of AppDrawn Materials and all other items agreed to be sold by AppDrawn to the Client for which payment is then due.
4.3 Until such time as the property in the AppDrawn Materials passes to the Client, the Client shall hold the AppDrawn Materials as AppDrawn's fiduciary agent and bailee, and shall keep the AppDrawn Materials separate from those of the Client and third parties and properly stored, protected and insured and identified as AppDrawn's property, but the Client shall be entitled to sell services based on the AppDrawn Materials or use the AppDrawn Materials in the ordinary course of its business.
4.4 Until such time as the property in the AppDrawn Materials passes to the, AppDrawn shall be entitled at any time to require the Client to destroy copies of AppDrawn Materials held by the Client and, if the Client fails to do so forthwith, to enter upon any premises of the Client or any third party where the AppDrawn Materials are stored and delete the AppDrawn Materials.
5 Rights in AppDrawn Material
5.1 The property and any copyright, design rights or other intellectual property rights in any AppDrawn Material shall, unless otherwise agreed in writing between the Client and AppDrawn, belong to AppDrawn, subject only to the right of the Client (which shall be a non-transferable licence) to use the AppDrawn Material, as contemplated by the Specification, in the ordinary course of its business. The Client shall have no such rights in respect of AppDrawn Materials unless and until the Client has paid all sums due to AppDrawn under the Contract and any other contract.
5.2 The Client shall not resell the AppDrawn Materials or any items incorporating any of the AppDrawn Materials unless such resale is expressly contemplated by the Contract or otherwise agreed in writing by AppDrawn. Nor shall the Client use any of the AppDrawn Materials in any manner, in quantities or on or part of any item not expressly contemplated by the Contract, unless otherwise agreed in writing by AppDrawn.
5.3 The Client shall have indefinite rights to maintain the AppDrawn Materials via a third party if the Contract relationship with AppDrawn is ended by AppDrawn ceasing business.
6 Warranties and Liability
6.1 AppDrawn warrants to the Client that the AppDrawn Materials will correspond with the agreed Specification at the time of delivery.
6.2 The above warranties are given by AppDrawn subject to the following conditions:
(a) AppDrawn shall be under no liability in respect of any defect in the Service and/or AppDrawn Materials for any loss, damage, costs, expenses or other claims for compensation arising from any Client Material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non arrival, or any other fault of the Client; and
(b) AppDrawn shall be under no liability under the above warranties (or any other warranty, condition or guarantee) if the total price for the Service and/or AppDrawn Materials has not been paid by the due date for payment.
6.3 Except in respect of death or personal injury caused by AppDrawn's negligence, or as expressly provided in these Conditions, AppDrawn shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of AppDrawn, its servants or agents or otherwise) which arise out of or in connection with the provision of the Service and/or AppDrawn Materials or their use by the Client, and the entire liability of AppDrawn under or in connection with the Contract shall not exceed the amount of AppDrawn's charges for the provision of the Service, except as expressly provided in these Conditions.
6.4 AppDrawn shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of AppDrawn's obligations in relation to the Service and/or AppDrawn Materials, if the delay or failure was due to any cause beyond AppDrawn's reasonable control.
6.5 Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. Where the Service and/or AppDrawn Materials are supplied under a consumer transaction, the statutory rights of the Client are not affected by these Conditions.
6.6 Any claim by the Client which is based on any defect in the quality or condition of AppDrawn Materials shall be notified to AppDrawn within 30 days from the date of delivery. If delivery the Client does not notify AppDrawn accordingly, the Client shall not be entitled to reject the AppDrawn Materials and AppDrawn shall have no liability for such defect or failure, and the Client shall be bound to pay the price as if the AppDrawn Materials had been delivered in accordance with the Contract.
6.7 Where any valid claim in respect of any of the AppDrawn Materials which is based on any defect in the quality or condition of the AppDrawn Materials or their failure to meet specification is notified to AppDrawn in accordance with these Conditions, AppDrawn shall be entitled to replace the AppDrawn Materials (or the part in question) free of charge or, at AppDrawn's sole discretion, refund to the Client the price of the AppDrawn Materials (or a proportionate part of the price), but AppDrawn shall have no further liability to the Client.
6.8 The Client shall not be entitled to reject, make any other claim or withhold payment in respect of any AppDrawn Materials if the Client has previously approved prototypes or other demonstrations provided by AppDrawn and such AppDrawn Materials conform with such prototypes, notwithstanding that they are defective in any way if such defect was evident in such prototypes.
7.1 The Client shall be entitled to terminate the Contract at any time by giving not less than one month's written notice to AppDrawn, in which case the Client shall indemnify AppDrawn in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by AppDrawn as a result of termination.
7.2 Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other if the other commits any breach of these Conditions and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so, or if the other goes into liquidation, or (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed.
8.1 These Conditions (together with the terms, if any, set out in the Specification or another Document which has been agreed by both parties) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
8.2 AppDrawn directors, employees or agents are not authorised to make any representations concerning the Service or the AppDrawn Materials unless confirmed by AppDrawn in writing. In entering into the Contract the Client acknowledges that it does not rely on any such representations which are not so confirmed.
8.3 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
8.4 No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
8.5 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
8.6 English law shall apply to these Conditions and the Contract generally, and the parties agree to submit to the non exclusive jurisdiction of the English courts, using mediation prior to any court process.