Flare's Terms and Conditions
1.1 In these Terms of Business “Flare” means Flare Software Ltd “the Client” means any individual, firm, company or other party with whom Flare contracts. “the Services” means any database development services, “the Contract” means any contract for the provision of the Services and/or the supply of Goods howsoever made between Flare and the Client. “the Goods” means any goods whatsoever including but not limited to printed material, manufactured items, computer based designs, databases & software and goods supplied by Flare to the Client pursuant to a Contract.
2. Formation of Contract
2.1 Any Contract shall incorporate and be subject to these Terms of Business and any further terms specified by Flare to the Client in writing. In the event of the Client seeking to incorporate special terms into the Contract, such special terms shall not apply unless they are expressly accepted and agreed by a director of Flare in writing.
2.2 No Contract shall come into existence until the Clientʼs order has been accepted in writing by Flare.
2.3 Any Estimate given by Flare is an invitation to the Client to appoint within 28 days of the Estimate date Flare to provide the Services and/or the Goods in accordance with these Terms of Business and any other special terms referred to in the Estimate or accepted and agreed by Flare in accordance with Paragraph 2.1 above. Flare reserves the right to withdraw or amend estimated prices at any time prior to its written acceptance of those prices as part of the Clientʼs order. Unless otherwise expressly agreed or earlier withdrawn, all Estimates expire automatically after 28 days.
2.4 If the Client submits an instruction containing terms inconsistent with or purporting to override these Terms, Flareʼs acknowledgement or acceptance of such instruction shall constitute a counter-offer on these Terms.
2.5 Any waiver of any breach of these Terms shall not prejudice Flareʼs rights in respect of any subsequent breach.
2.6 The Client shall be responsible for ensuring the accuracy of the terms of each order.
2.7 The Client may not cancel any order for Goods or Services which has been accepted by Flare except with the written agreement of Flare and on terms that the Client shall indemnify Flare 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 Flare as a result of cancellation.
2.8 No variation to the Contract shall be binding unless agreed in writing between the authorised representatives of Flare and the Client. Flareʼs employees or agents are not authorised to make any representations concerning the Goods or the Services unless confirmed by Flare in writing. In entering into the Contract the Client acknowledges that it does not rely on and waives any claim for breach of any such representations (including representations in brochures, catalogues, web pages and other marketing materials) which are not so confirmed.
2.9 Flare reserves the right to cancel the Contract without liability to the Client at any time before the Goods are delivered or the Services are performed if Flare becomes aware that the sale of the Goods or the supply of the Services infringes the laws or regulations of any applicable jurisdiction.
2.10 Any typographical, clerical or other error or omission in any sales literature, Estimate, price list, acceptance of offer, invoice or other document or information issued by Flare shall be subject to correction without liability on the part of Flare.
3. Capacity of Company
Flare acts as a principal at law in all contracts entered into by Flare in the usual course of its business.
4.1 Subject to any alternative basis for charging specified by Flare, the Client shall pay Flare for the Services and the Goods such sum as shall be calculated in accordance with Flareʼs current standard hourly or other rates of remuneration (whichever is applicable) in addition to the costs incurred by Flare in the provision of such Goods and Services.
4.2 The Client shall be deemed to have authorised Flare to purchase all such additional Goods and Services and provide such additional Goods and Services as shall be referred to (directly or indirectly) in any Contact Report issued by Flare save insofar as the Client shall have notified Flare in writing of its disagreement with any such matter in any Contact Report within two days of its receipt of the relevant Contact Report.
4.3 Flare reserves the right by giving notice to the Client at any time to increase the price of the Goods or the Services to reflect any increase in the cost to Flare which is due to any factor beyond the control of Flare.
4.4 Unless otherwise agreed in writing, all costs are quoted in sterling and all invoices are for payment in sterling as set out in paragraph 5 below. Where, because payments have been made by the Client on dates and in amounts different to those agreed at the commencement of Flareʼs work without Flareʼs prior consent, Flare has suffered exchange rate losses in excess of 2% of the due amounts, Flare reserves the right to charge additional amounts to make up that shortfall.
5. Payment and Invoicing Procedure
5.1 In respect of Services Flare will invoice the Client at such times as it shall in its discretion think fit and the Client will unless otherwise specified by Flare pay each invoice within thirty days from the date of such invoice failing which Flare shall be entitled to cease all further work on behalf of the Client without liability in respect of any loss or damage sustained by the Client as a result.
5.2 Unless otherwise agreed in writing by Flare, payment of all invoices will be due and payable, (without any deduction or withholding) in cash or cleared funds thirty days from the date of invoice.
5.3 If the Client shall fail to make payment in full in accordance with the provisions of this paragraph 5 then (without prejudice to any other rights of Flare) the Client shall without any need for Flare to give notice become liable to pay to Flare compound interest on the amount for the time being unpaid at the rate which is thirty percent per anum calculated from the date of due payment until the date of actual payment as well after as before any judgement and Flare shall be entitled at its option either:
5.3.1 to suspend all or any other supplies or deliveries to be made under that or any other Contract with the Client PROVIDED ALWAYS THAT in any event the Client shall not in any respect be released from its obligations to Flare under that or any such other Contract: or
5.3.2 to terminate the relevant Contract and/or other contract with the Client and to claim damages from the Client.
5.4 Time for payment is of the essence of the Contract.
6. Costs of Purchases and Client Approval
Subject to paragraph 4.2 above Flare undertakes not to purchase production materials or to incur costs chargeable to the Client without the Clientʼs prior agreement PROVIDED ALWAYS THAT the Clientʼs approval of copy, layouts, proofs, scripts, databases, Contact Reports or schedules will constitute the authority to Flare to incur such costs. The Client shall not in any event unreasonably withhold or delay its approval of copy, layouts, proofs, scripts, databases, Contact Reports or schedules PROVIDED ALWAYS THAT the Client shall be deemed to approve the same if it has not notified Flare of its non-approval within a period following receipt of the same which shall be reasonable having regard to the need for any changes which the Client may require and any requirements for publication, distribution for delivery which may exist.
7. Despatch and Delivery
7.1 Delivery dates are approximate only and, subject to paragraph 15.1 below, the time of delivery shall not be of the essence of the Contract.
8. Alternations of Ancillary Contracts
Subject to paragraph 2.8 above, alterations of contracts can be made only when agreed in writing by Flare and permitted by the terms of the contract entered into by Flare with suppliers of goods or service.
9. Copyright and Title
9.1 The copyright, design right and all other intellectual property rights in the Goods, all artwork, copy, promotion and publicity materials, web integration code, databases and all other work created or commissioned by Flare will vest in Flare and the Client will promptly assign such rights to Flare if called upon to do so. The Client may use such Goods or other material only directly for the purposes authorised by Flare. The Client may not create or have created copies of the Goods or other materials without Flareʼs express prior written consent.
9.2 Such property other than copyright as shall subsist in the promotional and other material supplied by Flare to the Client, shall remain the property of Flare and the Client shall hold such material as bailee until Flare has been paid in full for any such material, and Flare shall have the right without prejudice to the obligation of the Client to pay for such material and for that purpose to go upon any premises occupied by the Client or any third party.