Terms of sale
Terms of Sale
Definitions
In this Agreement:
1.1
the following terms shall have the following meanings unless the context otherwise requires:
“Agreement” these Terms and Conditions together with the relevant Quotation and any document referred to in these Terms and Conditions or the Quotation;
“Breach of Duty” the breach of any: (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract; or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty);
“Business Day” any day other than: (i) a Saturday; (ii) a Sunday; or (iii) a day when the clearing banks in the City of London are not physically open for business;
“Client”, “you” or “your” the recipient of services and/or products under this Agreement, as stipulated in the Quotation;
“Confidential Information” any information in any form or medium obtained by or on behalf of either Party from or on behalf of the other Party in relation to this Agreement which is expressly marked as confidential or which a reasonable person would consider to be confidential, whether disclosed or obtained before, on or after the date of this Agreement, together with any reproductions of such information or any part of it;
“Data” any data used in relation to you or your employees, agents, other contractors or other suppliers and provided or made available by you to us, or otherwise discovered by us, in relation to this Agreement;
“Delivery Address” the location to which we are to deliver the Products, as stipulated in the Quotation;
“Estimated Lead Time” the estimated period within which the Products will be delivered to the Delivery Address, as stipulated in the Quotation;
“Event of Force Majeure” has the meaning given to it in Clause 13.1;
“Fees” the fees payable by you to us for the provision by us of the Services and/or the Products, as may be stipulated in the relevant Quotation;
“Intellectual Property Rights” copyright and related rights, trade marks and service marks, trade names and domain names, rights under licences, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, patents, rights to inventions, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Liability” shall mean liability in or for breach of contract, Breach of Duty, torts (including negligence and intentional torts), deliberate breach (including deliberate personal repudiatory breach), misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement (and, for the purposes of this definition, all references to “this Agreement” shall be deemed to include any collateral contract);
“Party” us or you, and “Parties” means both of us and you;
“Products” any products you order from us relating to the Services, as may be more particularly described in the Quotation;
“Product Specification” any specification for the Products, including any relevant plans or drawings, that is provided by you to us in writing and to which we agree in writing;
“Quotation” the written document containing specific information relating to the particular services and/or products supplied or to be arranged to be supplied by us to you;
“Rates” our time and materials rates for providing services, being our standard time and materials rates from time to time;
“Services” the services we are to provide under this Agreement, as may be stipulated in the Quotation (and which may include marketing, sales promotions and advertising services including products);
“Site” a site where you are based; and
“Volume” the volume of the Products that you order from us, as stipulated in the Quotation;
1.2
references to “Clauses” are to clauses of these Terms and Conditions;
1.3
the headings are inserted for convenience only and shall not affect the construction or interpretation of this Agreement;
1.4
a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.5
a reference to a Party includes its personal representatives, successors or permitted assigns;
1.6
words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral and references to persons shall include an individual, company, corporation, firm, partnership, trust, association, government or local authority department or other authority or body (whether corporate or unincorporated);
1.7
a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.8
any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.9
a reference to “writing” or “written” includes in electronic form and similar means of communication (except under Clause 14).
Agreement
2.1
The terms of this Agreement apply to the exclusion of any terms and conditions submitted, proposed or stipulated by you in whatever form and at whatever time. These Terms and Conditions apply to all Services and Products.
2.2
Save as expressly provided in this Agreement, this Agreement shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the Parties preceding the date of this Agreement and in any way relating to the subject matter of this Agreement and to the exclusion of any representations not expressly stated in this Agreement except for any fraudulent misrepresentations or any misrepresentation as to a fundamental matter. Each of the Parties acknowledges that it has not entered into this Agreement based on any representation that is not expressly incorporated into this Agreement.
2.3
This Agreement constitutes the whole agreement and understanding of the Parties as to the subject matter of this Agreement and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to in this Agreement.
2.4
This Agreement shall be legally formed and the Parties shall be legally bound when you agree to receive the Products and/or Services in accordance with the terms of the Quotation. Submission by us to you of a Quotation shall be deemed to be an offer by us to provide Services and/or Products (as specified in the Quotation) to you, subject to the provisions of this Agreement, and your continued instructions to us following our sending to you of that Quotation shall be considered acceptance of such offer, but the requirements for us to perform any of our obligations under this Agreement shall be conditional upon our receipt from you of any advance payment of Fees as required under this Agreement.
2.5
If you provide to us a purchase order for your receipt of Services and/or Products other than as set out in Clause 2.4, that purchase order (and any terms and conditions attached or referred to in it) shall be purely for your administrative purposes and shall not form part of this Agreement.
2.6
In the event of a conflict between these Terms and Conditions and a Quotation and any document referred to in these Terms and Conditions or Quotation, then
2.6.1
the Quotation shall prevail over
2.6.2
these Terms and Conditions, which prevails over
2.6.3
any other document.
2.7
Each Quotation constitutes a separate agreement; there may be more than one such agreement between the Parties in force at the same time as this Agreement.
Services
3.1
We warrant that:
3.1.1
we shall use our reasonable skill and care in providing the Services;
3.1.2
our employees, agents and subcontractors have the necessary skill to provide any Services;
3.1.3
any Services will be provided in a professional, competent and workmanlike manner;
3.1.4
we have all necessary consents, rights and permission to enter into, and perform our obligations under, this Agreement;
3.1.5
we shall ensure that our employees, agents and subcontractors co-operate with, and make themselves available at all reasonable times for, discussion and meetings with, you and your employees, agents or subcontractors;
3.1.6
our advice and recommendations shall be unbiased and independent;
3.1.7
we shall provide the Services at such other location as we reasonably consider to be appropriate;
3.1.8
we shall use our reasonable endeavours to ensure that whilst our employees, agents and subcontractors are on your premises they conform to your normal codes of staff and security practice as are advised to them in advance by you;
3.1.9
we shall fully, frequently and promptly update you as to progress with use of the Services, including reporting on any concerns, issues, comments or queries that need to be addressed or resolved; and
3.1.10
we shall comply with all applicable laws, statutes, regulations and bye-laws in relation to the exercise of our rights and performance of our obligations under this Agreement.
3.2
We do not warrant that the Services or the Products will meet your individual requirements. We are not responsible for any people, equipment, deliverables, products or services that we are not expressly stipulated to provide in this Agreement. You are responsible for any people, equipment, deliverables, products and services that you need to obtain from someone other than us. Except for any matter in relation to which we specifically agree in writing to advise or do, we shall not be responsible, or have any Liability (subject to Clause 11.2) for advising on, or failing to advise on, or doing, or failing to do, anything else.
3.3
Subject to us performing the Services within any timeframe agreed as being necessary for the performance of the Services, we may select our own working times and location provided that the nature of particular services does not require those particular services to be undertaken during particular working times or at a particular location (in which situation you shall be entitled to request that we perform the Services at such working times and location as are reasonable in the circumstances).
3.4
We shall be responsible for the provision of the Services and the Products only. You shall be responsible for any decision or implementation by you and your employees, agents and other contractors relating to any advice, recommendation or course of action proposed in the provision of the Services, and, subject to Clause 11.2, we shall have no Liability for the results of such decision or implementation.
3.5
Unless we agree otherwise, we shall not be required to provide the Services at any place other than the Site. We shall not unreasonably withhold or delay our agreement to perform the Services at any other place that you reasonably request, although you acknowledge that we may charge additional Fees, calculated at the Rates, and expenses to reflect our extra costs in performing the Services at the different location.
3.6
We shall use our reasonable endeavours to perform our obligations under this Agreement within any timescales set out in this Agreement. However, subject to Clause 11.2, we shall not have any Liability for any delays or failures to accurately perform our obligations:
3.6.1
if we have used those endeavours; or
3.6.2
if caused by any failure or delay on your part or on the part of your employees, agents or subcontractors or by any breach by you of this Agreement or any other agreement.
If there is any slippage in time, we shall use our reasonable endeavours to reschedule delayed tasks to a mutually convenient time.
3.7
If we are delayed or hindered in providing any Services as a result of any breach, delay or failure by you to perform any of your obligations under this Agreement or of any other agreement between us and you, then we may charge you at the Rates for:
3.7.1
any time reasonably incurred as a result of the hindrance or breach (including any wasted time for which we had anticipated that our personnel would provide Services under this Agreement but become unable to provide the Services at that time as a result of your act or omission); and
3.7.2
any time that we were going to spend in providing the Services, in addition to the time we actually do spend in providing the Services.
Products
4.1
We obtain any Products that you order from us from third party manufacturers and deliver the Products we receive from those third party manufacturers to you. Subject to the rest of this Clause 4, we warrant that:
4.1.1
as at delivery, the Products shall be free from material defects in design, workmanship and materials and materially conform to the Product Specification; and
4.1.2
we shall deliver the Products to you undamaged and in the Volume agreed in the Quotation.
4.2
You will check the Products for obvious defects and/or damage on delivery. We shall, at our option, replace repair or provide a refund for Products that are lost or damaged in transit to the Delivery Address. Subject to Clause 11.2, we shall not have any Liability for loss of, or damage to, Products in transit or on delivery to the Delivery Address unless you inform us in writing within five Business Days:
4.2.1
after the Estimated Lead Time or receipt that you have not received the correct Products at all or in full; or
4.2.2
after receipt that the Products have any damage as would be obvious from such inspection as we would reasonably expect;
and also unless you provide us with our delivery note number and such other information or documentation as we may reasonably require at the same time as the notice.
4.3
Subject to Clause 4.5, we shall at our option:
4.3.1
replace or repair; or
4.3.2
repay an appropriate portion of the Fees paid by you in respect of; or
4.3.3
provide a credit notice in respect of a reasonable part of;
the delivered Products which are not in conformance to the warranty set out in Clause 4.1.
4.4
Subject to Clause 11.2, we shall not have any Liability for providing Products to the extent caused by our compliance with and reliance on your specifications, instructions, requirements or the Product Specification. You shall indemnify us against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by us in connection with any claim made against us for actual or alleged infringement of a third partys Intellectual Property Rights arising out of or in connection with our use of the Product Specification.
4.5
Without prejudice to Clause 11.2, our Liability for defective or damaged Products is subject to:
4.5.1
you informing us in writing of any claim promptly on discovery of the defect or damage, and in any event within one month of delivery of the Products to you, together with reasonable details of the way in which such defect or damage was caused and how the Products do not conform with this Agreement;
4.5.2
you providing us with our delivery note number and such other information as we may reasonably require;
4.5.3
you showing to us to our reasonable satisfaction that the defect or damage is solely attributable to our (or our supplierÂs) defective design, materials or workmanship in respect of the Products and not:
(a)
wear or tear from normal use; or
(b)
the combination, incompatibility, attachment, affixation or incorporation of the Products with any other goods, products, materials or substances;
4.5.4
the Products having not been:(a) misused or subjected to neglect, improper or inadequate care or carelessness; or (b) involved in any accident or attempt at repair, replacement, alteration, change or modification except by us or on our behalf or as approved by us; or (c) dealt with or used or stored contrary to good trade practice or any oral or written instructions, advice or recommendation of us;
4.5.5
you holding the Products safely and securely in good conditions; and
4.5.6
you allowing and procuring for us the opportunity to have access to and inspect the Products.
4.6
The warranties set out in this Clause 4 are restricted to you, and no warranty is made to any other person, whether subsequent buyer or user or customer, or to any bailee, licensee, assignee, employee, agent or otherwise.
4.7
If you make an invalid claim under the warranties set out in this Clause 4, we may charge you for our fees and costs of dealing with that claim, including examining, storing, repairing or replacing the Products.
4.8
The warranties given in this Clause 4 shall apply to any repaired or replacement Products supplied by we.
4.9
The terms implied by sections 13 to 15 of the Sale of Products Act 1979 are, to the fullest extent permitted by law, excluded from this Agreement.
Delivery
5.1
We shall ensure that each delivery of the Products is accompanied by a delivery note which shows the date of the Quotation, all relevant reference numbers, and the type and quantity of the Products.
5.2
We shall deliver the Products to you at the Delivery Address within the Estimated Lead Time.
5.3
Delivery of the Products shall be completed on the completion of our unloading of the Products at the Delivery Address.
5.4
Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Subject to Clause 11.2, we shall not have any Liability for any delay in delivery of the Products that is caused by an Event of Force Majeure or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
5.5
If we fail to deliver the Products, our Liability (subject to Clause 11.2) for that shall be limited to the costs and expenses incurred by you in obtaining replacement goods of similar description and quality in the cheapest market available, less the Fees not yet paid by you to us for the Products. Subject to Clause 11.2, we shall have no Liability for any failure to deliver the Products to the extent that such failure is caused by an Event of Force Majeure or your failure to provide us with adequate delivery instructions for the Products or any relevant instruction related to the supply of the Products.
5.6
If we are unable to complete delivery of the Products when we attempt to so deliver, then, except where such failure or delay is caused by an Event of Force Majeure or our failure to comply with our obligations under this Agreement:
5.6.1
delivery of the Products shall be deemed to have been completed at 9.00 am on the day on which we attempted delivery of the Products to you but were unable to complete such delivery; and
5.6.2
we shall store the Products until redelivery takes place, and may charge you for all related costs and expenses (including insurance).
5.7
If, 10 Business Days after the day on which we informed you that we have unsuccessfully attempted delivery of the Products to you, you have not arranged for redelivery of the Products, we may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, account to you for any excess over the price of the Products or charge you for any shortfall below the price of the Products.
5.8
We may deliver the Products by instalments, which we may invoice and require payment for separately. Any delay in delivery or defect in an instalment shall not entitle you to cancel any other instalment.
5.9
All risk in the Products shall pass to you upon delivery, except that, where delivery is delayed due to your breach of your obligations under this Agreement, risk shall pass at the date when delivery would have occurred but for your breach. From the time when risk passes to you, we shall not have any Liability (subject to Clause 11.2) for loss or destruction of the Products.
5.10
Except as specifically stipulated in this Agreement, we shall not be responsible for providing or achieving any particular results or outcomes or within a particular time.
5.11
Except where expressly stated in this Agreement, we exclude all conditions, warranties, terms and obligations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the Services and the Products.
Title
6.1
Notwithstanding delivery or collection of the Products, title to and ownership of the Products shall not pass to you until we have received in full (in cash or in cleared funds) all sums due to us in respect of:
6.1.1
the Products; and
6.1.2
all other sums which are or which become due to us from you on any account;
(“Payment”).
6.2
Until payment, you shall:
6.2.1
hold the Products on a fiduciary basis as our bailee;
6.2.2
hold the Products in good, saleable condition and keep them insured against all risks for their full price from the date of delivery;
6.2.3
keep an up-to-date list of the location of our property and present this to us on request;
6.2.4
not destroy, deface or obscure any identifying mark or packaging on or relating to the Products; and
6.2.5
store the Products separately from other goods or in any way so that they remain readily identifiable as our property.
6.3
If the Products are attached to or incorporated into any other materials or goods, the property in the new material or good shall vest in us until Payment in the proportion of the value of the Products to the other constituent elements.
6.4
We may at any time until title passes under this Clause 6 without notice recover possession of the Products which are our property. You hereby grant, or procure the grant, to us and our employees, agents and subcontractors, an irrevocable licence to enter for that purpose any premises then occupied by or in the ownership or possession of you or your direct or indirect customer. You shall indemnify us against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by us that arise from our exercise of our rights under such licence.
6.5
We shall be entitled to recover payment for the Products notwithstanding that ownership of any of the Products has not passed from us.
6.6
On termination of this Agreement for any reason, our rights contained in this Clause 6 shall remain in full force and effect.
Your Obligations
7.1
You shall (and, where, appropriate, you shall ensure that your employees, agents and other contractors shall):
7.1.1
ensure that the terms of the Quotation, and any specification or instructions you provide to us for the Services and/or the Products (including the Product Specification), are complete and accurate;
7.1.2
provide proper, adequate, safe, comfortable and suitable environmental and operating conditions if we undertake any work at your premises;
7.1.3
provide access, at all reasonable times during the term of this Agreement on your premises, to car parking, adequate space (including desk space), accommodation, materials, equipment and hardware (including laptops), third party facilities (including, in each case, promptly upon our reasonable request) to enable us to perform our obligations and exercise our rights under this Agreement;
7.1.4
inform us in writing a reasonable time before the commencement of any Services or delivery of the Products of any regulations relevant to us when working at any premises under your control;
7.1.5
be present and available at your premises at the required times to enable us to perform our obligations at the times we reasonably require under this Agreement;
7.1.6
sign a confirmatory note upon any of the Services (in whole or in part) having taken place or any of the Products having been delivered, if we reasonably require you to do so;
7.1.7
fully, frequently and promptly update us as to progress with use of the Services and the Products generally, and your activities and developments generally, including reporting on any concerns, issues, queries or comments that need to be resolved or discussed;
7.1.8
ensure that your employees, agents and subcontractors fully co-operate with, and make themselves available at all reasonable times for discussion and meetings with, us and our employees, agents and subcontractors and to enable us to promptly perform our obligations under this Agreement;
7.1.9
promptly provide to us such Data, information and assistance that will enable us to carry out fully, accurately and promptly our obligations under this Agreement to the best of our ability;
7.1.10
take all care and assume all responsibility with using, instructing or employing any third parties (including other service providers) recommended or referred by us;
7.1.11
promptly comply with all of our reasonable requests in connection with this Agreement;
7.1.12
have all rights, permissions and consents to enter into, and perform your obligations under, this Agreement; and
7.1.13
comply with all applicable laws, statutes, regulations and bye-laws in relation to the exercise of your rights and performance of your obligations under this Agreement.
7.2
It is your responsibility to ensure that the Services and the Products are sufficient and suitable for your purposes and meet your individual requirements.
7.3
You are responsible for ensuring that you provide us with the information required to enable us to properly provide the Services and the Products. We shall not be responsible or, subject to Clause 11.2, have any Liability for any failure to provide the Services or the Products to the extent caused by your failure to properly ensure the provision of the relevant information.
7.4
It is your responsibility to ensure that:
7.4.1
any decision or implementation made by you and your employees, agents and other contractors as a result of any advice, recommendation or course of action proposed in the provision of the Services or the Products by us is made in your best interests; and
7.4.2
the process of making such decision or implementation by you and your employees, agents and other contractors is made in compliance with your relevant risk strategy;
and you bear absolute responsibility and Liability for the consequences of any such decision or implementation.
7.5
It is your responsibility to ensure that you and your employees, agents and other contractors have in place and have the right licence to use any desirable equipment and communications links before we provide the Services and the Products in accordance with this Agreement. You are responsible for ensuring that you and your employees, agents and other contractors provide us with the Data required to enable us to properly provide the Services and the Products. Subject to Clause 11.2, we shall not be responsible or have any Liability for any failure to provide the Services or the Products to the extent caused by your failure to properly ensure the provision of the relevant Data or fully and lawfully procure that you have in place the right and licence to use all relevant equipment and communications links or for any reason caused by any third party.
Fees
8.1
In consideration of obtaining the relevant Services and Products we provide pursuant to this Agreement, you shall pay to us the relevant Fees.
8.2
The Fees shall be as set out in the Quotation.
8.3
In accordance with the Quotation, or as otherwise in accordance with our normal expenses policies or procedures from time to time, we may charge you for our reasonable expenses incurred in the course of performing our obligations under this Agreement, including for the reasonable accommodation, travel, telephone, food, subsistence, out-of-pocket, any other expenses incurred in the course of performing this Agreement outside of the relevant person’s normal place of work, stationery, and materials or equipment agreed in writing between the Parties that we will purchase on your behalf.
8.4
You shall pay the Fees to us at such times and in such instalments as we may direct from time to time. Unless set out otherwise in this Agreement, we may issue invoices to you for the Fees at such intervals as we may, in our absolute discretion, consider appropriate.
8.5
Unless otherwise set out in the Quotation, all sums due under this Agreement are exclusive of VAT or other sales, import or export duties or taxes (if applicable) which shall be payable in addition at the same time as payment of any sums due.
8.6
Where payment for any Services is on a time basis, we shall maintain full and accurate records of the time spent in providing those Services to you and shall produce such records to you for inspection at all reasonable times on request.
8.7
You shall pay us for all Fees within 30 days after receipt of our invoice. However, if we are to incur significant expense on your behalf, the Parties may agree (such agreement not to be unreasonably withheld or delayed), on a case-by-case basis, that you shall pay us in advance before we have incurred the expense.
8.8
You shall pay us by any payment method that we may stipulate from time to time. No payment shall be considered paid until we have received it in cleared funds in full.
8.9
Payment shall be in the currency in force in England from time to time or such other currency as we may stipulate from time to time for the Fees.
8.10
We reserve the right to increase the Fees and the Rates in respect of any Services or Products not included in the Quotation which we may agree, in our absolute discretion, to provide to you in addition to those Services and Products set out in the Quotation.
8.11
Where Services are provided on a time basis, we do not guarantee that any work intended to be completed within a particular period of time or within a particular maximum figure will be completed during that timeframe or within that budget, and if you would like us to spend any more time continuing to work towards producing a result where this Agreement contains a capped amount of time to be spent, any more time will be subject to us and you first agreeing a change to this Agreement in accordance with Clause 19.
8.12
You shall pay all amounts due under this Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
8.13
If you are late in paying any part of any monies due to us under this Agreement and such payment remains outstanding for seven days following us providing notice to you of such outstanding payment, we may (without prejudice to any other right or remedy available to us whether under this Agreement or by any statute, regulation or bye-law) do any or all of the following:
8.13.1
charge interest and other costs on the overdue amount due but unpaid at the annual rate of interest set under Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly;
8.13.2
recover our costs and expenses and charges (including legal and debt collection fees and costs) in collecting the late payment; and
8.13.3
suspend performance of this Agreement until payment in full has been made.
Intellectual Property Rights and Data
9.1
Each Party acknowledges that, as between the Parties:
9.1.1
you and your licensors own all Intellectual Property Rights in the Data provided by you to us, whether or not we had any involvement in using your Data; and
9.1.2
we and our licensors own all Intellectual Property Rights in the Products and the Services.
9.2
To the extent that:
9.2.1
we would otherwise be the owner, we hereby assign to you with full title guarantee all our Intellectual Property Rights in the Data provided by you; and
9.2.2
you would otherwise be the owner, you hereby assign to us with full title guarantee your Intellectual Property Rights in the Products and the Services.
9.3
You hereby grant to us a royalty-free, worldwide, perpetual, non-exclusive, assignable, sublicensable licence to use the Data for the purposes of performing this Agreement.
9.4
we hereby grant to you a non-assignable, non-sublicensable, non-exclusive, perpetual licence to use any such Intellectual Property Rights as are owned by us (and not a third party) for your usual internal business purposes to make use of the Products and the Services.
9.5
To the extent that any Intellectual Property Rights have been created by us at your specific request, relate exclusively to your business and incorporate your Confidential Information, any specifically created part that relates exclusively to your business and incorporating your Confidential Information shall be assigned to you by us. Intellectual Property Rights shall be assigned only if expressly agreed in writing by the Parties that they are to be assigned.
Confidentiality
10.1
Each Party shall keep the other Party’s Confidential Information confidential and shall not:
10.1.1
use such Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement; or
10.1.2
disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this Clause
10.
Each Party shall use adequate procedures and security measures to protect the other PartyÂs Confidential Information from inadvertent disclosure or release to unauthorised persons.
10.2
A Party may disclose the other Party’s Confidential Information to those of its employees, agents and subcontractors who need to know such Confidential Information provided that:
10.2.1
it informs such employees, agents and subcontractors of the confidential nature of the Confidential Information before disclosure; and
10.2.2
it does so subject to obligations equivalent to those set out in this Clause 10.
10.3
A Party may disclose the Confidential Information of the other Party 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 10.3, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.
10.4
The obligations of confidentiality in this Clause 10 shall not extend to any matter which either Party can show:
10.4.1
is in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations of this Agreement; or
10.4.2
was independently developed by it; or
10.4.3
was independently disclosed to it by a third party entitled to disclose the same; or
10.4.4
was in its written records prior to receipt.
10.5
Each Party reserves all rights in its Confidential Information. No rights or obligations in respect of a Party’s Confidential Information other than those expressly stated in this Agreement are granted to the other Party, or to be implied from this Agreement.
10.6
We may identify you as our client and the type of Products and/or Services provided by us to you, provided that, in doing so, we shall not reveal any of your Confidential Information (without your prior written consent).
10.7
On termination of this Agreement or on the request of the other Party, each Party shall:
10.7.1
return to the other Party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other Party’s Confidential Information;
10.7.2
erase all the other Party’s Confidential Information from its computer systems (to the extent possible); and
10.7.3
certify in writing to the other Party that it has complied with the requirements of this Clause 10.7, provided that a recipient Party may retain documents and materials containing, reflecting, incorporating or based on the other Party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority.
10.8
The provisions of this Clause 10 shall continue to apply after termination of this Agreement.
10.9
Neither Party shall make any announcement of any kind in respect of the subject matter of this Agreement except with the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed) or as is required by law. The Parties shall act in a co-operative way in approving any announcement following the other Party’s request for consent.
Limitation of Liability
11.1
This Clause 11 prevails over all of this Agreement and sets forth the entire Liability of either Party, and the sole and exclusive remedies of the other Party, in respect of:
11.1.1
performance, non-performance, purported performance, delay in performance or mis-performance of this Agreement or any goods, services or deliverables in connection with this Agreement; or
11.1.2
otherwise in relation to this Agreement or entering into this Agreement.
11.2
Neither Party excludes or limits its Liability for:
11.2.1
its fraud; or
11.2.2
death or personal injury caused by its Breach of Duty; or
11.2.3
any breach of the obligations implied by Section 12 of the Sale of Products Act 1979 or Section 2 of the Supply of Products and Services Act 1982; or
11.2.4
any other Liability which cannot be excluded or limited by applicable law.
11.3
Subject to Clause 11.2, neither Party accepts and hereby excludes any Liability for Breach of Duty other than any Liability arising pursuant to the terms of this Agreement.
11.4
Subject to Clause 11.2, neither Party shall have any Liability in respect of any:
11.4.1
indirect or consequential losses, damages, costs or expenses;
11.4.2
loss of actual or anticipated profits;
11.4.3
loss of contracts;
11.4.4
loss of use of money;
11.4.5
loss of anticipated savings;
11.4.6
loss of revenue;
11.4.7
loss of goodwill;
11.4.8
loss of reputation;
11.4.9
loss of business;
11.4.10
ex gratia payments;
11.4.11
loss of operation time;
11.4.12
loss of opportunity;
11.4.13
loss caused by the diminution in value of any asset; or
11.4.14
loss of, damage to, or corruption of, data (except to the extent that that Party specifically has a responsibility to prevent loss of, damage to or corruption of, data under this Agreement);
whether or not such losses were reasonably foreseeable or the Party or its agents or contractors had been advised of the possibility of such losses being incurred. For the avoidance of doubt, Clauses 11.4.2 to 11.4.14 (inclusive) of this Clause
11.4 apply whether such losses are direct, indirect, consequential or otherwise.
11.5
Subject to Clause 11.2, and subject to any specific right or remedy expressly set out in this Agreement that explicitly provides that the following cap may be exceeded, the total aggregate Liability of each Party in respect of this Agreement (or otherwise) shall be limited to the greater of:
11.5.1
110% of all amounts paid and total other sums payable, in aggregate, by you to us under this Agreement in the 12 months prior to the date on which the claim first arose; or
11.5.2
£250,000.
11.6
You shall not limit your Liability for failure to pay the Fees or expenses.
11.7
The limitation of Liability under Clause 11.5 has effect in relation both to any Liability expressly provided for under this Agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of this Agreement.
11.8
You acknowledge and accept that we only provide the Services and/or Products to you on the express condition that we will not be responsible for, nor shall we have any Liability (subject to Clause 11.2) directly or indirectly for any act or omission of you, or your employees, agents or subcontractors, or any third party.
Termination
12.1
This Agreement shall commence on the date on which this Agreement is entered into.
12.2
Unless terminated earlier in accordance with the termination provisions under this Agreement, a contract in respect of a Quotation shall continue in full force and effect until the latest of:
12.2.1
the completion of the provision of any Services and/or the supply of any Products, as specified in that Quotation, in accordance with this Agreement; or
12.2.2
the conclusion of payment of all sums due under that Quotation.
12.3
Unless terminated earlier in accordance with the termination provisions under this Agreement, this Agreement shall continue in full force and effect until either Party gives to the other Party no less than twenty eight days written notice.
12.4
Without prejudice to any of our rights or remedies, we may terminate this Agreement with immediate effect (or such other notice period as we see fit in our absolute discretion) by giving notice to you if you fail to pay any amount due under this Agreement on the due date for payment and such amount remains in default not less than seven days after being notified to make such payment.
12.5
Either Party may terminate this Agreement (or a contract in respect of a Quotation) immediately by notice in writing to the other Party if:
12.5.1
the other Party is in material breach of any of its obligations under this Agreement, and, where such material breach is capable of remedy, the other Party fails to remedy such breach within a period of 10 Business Days of being notified of such breach by the Party; and/or
12.5.2
the other Party gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or an order is made or a resolution is passed for the winding-up of the other Party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other Party or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other Party’s assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator or which entitle the court to make a winding-up or bankruptcy order or the other Party takes or suffers any similar or analogous action in consequence of debt in any jurisdiction.
12.6
Termination of this Agreement (or a contract in respect of a Quotation) shall be without prejudice to any accrued rights or remedies of either Party.
12.7
On termination of this Agreement (or a contract in respect of a Quotation) for any reason:
12.7.1
we shall cease to provide the Products and Services under this Agreement (or the relevant Quotation); and
12.7.2
all outstanding Fees and any other sums shall become immediately payable, whether invoiced or not.
12.8
Clauses 1, 2.6, 4.4, 6, 8, 9, 10, 11, 12.6, 12.7, 12.8, 13.1, 13.6, 14, 15, 16, 17, 18, 19, 20 and 21 shall survive any termination of this Agreement for any reason.
Force Majeure
13.1
Subject to Clause 11.2, and save for any obligations in respect of the payment of Fees, neither Party shall have any Liability for any breach, hindrance or delay in performance of its obligations under this Agreement which is caused by an Event of Force Majeure, regardless of whether the circumstances in question could have been foreseen. An “Event of Force Majeure” means any cause outside of the Party’s reasonable control, including act of God, actions or omissions of third parties (including hackers, suppliers, couriers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, national emergencies, terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workmen, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions, loss at sea, earthquake, natural disaster, accident, collapse of building structures, failure of plant machinery or machinery or third party computers or third party hardware or vehicles, failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation.
13.2
Each of the Parties agrees to inform the other upon becoming aware of an Event of Force Majeure, such information to contain details of the circumstances giving rise to the Event of Force Majeure.
13.3
The performance of each PartyÂs obligations shall be suspended during the period that the circumstances persist and such Party shall be granted an extension of time for performance equal to the period of the delay.
13.4
Each Party shall bear its own costs incurred by the Event of Force Majeure.
13.5
If the performance of any obligations is delayed under this Clause 13, each Party shall nevertheless accept performance as and when the other shall be able to perform.
13.6
If the Event of Force Majeure continues without a break for more than one month, either Party may terminate this Agreement immediately by notice to the other, in which event neither Party shall have any Liability (subject to Clause 11.2) to the other Party by reason of such termination.
13.7
If we have contracted to provide identical or similar services and/or products to more than one customer and we are prevented from fully meeting our obligations to you due to an Event of Force Majeure, we may decide at our absolute discretion which contracts we will perform and to what extent.
Notices
14.1
Any notice given to either Party under or in connection with this Agreement shall be in writing, addressed to the relevant Party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that Party may have specified to the other Party in writing, and shall be delivered personally, sent by pre-paid first class post, recorded delivery or commercial courier.
14.2
A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 14.1; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; or, if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
14.3
The provisions of this Clause 14 shall not apply to the service of any proceedings or other documents in any legal action.
14.3.1
On recognition of the existence of this clause (14.3.1) via communications submitted to company Director (Neal H. Edsall), the sum of 50 GBP will be surrendered to the first recognised applicant; by said Director, within a reasonable time-frame.
Assignment
15. You may not assign, transfer, charge or otherwise encumber, create any trust over, or deal in any manner with, this Agreement or any right, benefit or interest under it, nor transfer, novate or sub-contract any of your obligations under it, without our prior written consent (such consent not to be unreasonably withheld or delayed).
Severance
16.1
If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
16.2
If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and
Waiver
17. A waiver of any right or remedy under this Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
Third Party Rights
18. A person who is not a Party shall not have any rights under or in connection with this Agreement.
Variation
19.1
The Parties shall discuss any change to this Agreement (“Change”) proposed by either Party, and such discussion shall result in either:
19.1.1
a written request for a Change by you; or
19.1.2
a written recommendation for a Change by us;
or, if neither Party wishes to submit a request or recommendation for a Change, the proposal for Change will not proceed.
19.2
Where a written request for a Change is received by us from you, we shall:
19.2.1
unless otherwise agreed, submit a Change Control Form (“Form”) to you within the period agreed between us or, if no such period is agreed, within five Business Days from the date on which we receive such request for Change; or
19.2.2
inform you that we are not able to comply with such request for a Change.
19.3
A written recommendation for a Change by us shall be submitted directly to you as a Form at the time of such recommendation.
19.4
Each Form shall contain:
19.4.1
the title of the Change;
19.4.2
the originator and the date of the request or recommendation for the Change;
19.4.3
the reason for the Change;
19.4.4
the full details of the Change, including any specifications;
19.4.5
the price, if any, of or associated with the Change;
19.4.6
a timetable for implementation, together with any proposals for acceptance of the Change;
19.4.7
the impact, if any, of the Change on other aspects of this Agreement, including:(a) the Fees;(b) the contractual documentation; and (c)staff resources;
19.4.8
the date of expiry of validity of the Form (which shall not be less than seven Business Days); and
19.4.9
provision for signature of the Form by each of us and you.
19.5
For each Form submitted, you shall, within the period of validity of the Form as set out in Clause 19.4.8:
19.5.1
allocate a sequential number to the Form;
19.5.2
evaluate the Form, and as appropriate either: (a) request further information; or (b) approve the Form; or (c) inform us of the rejection of the Form; and
19.5.3
if approved, arrange for two copies of the approved Form to be signed for and on behalf of you and us. The signing of the Form shall signify acceptance of a Change by both Parties.
Once signed by both Parties, the Change shall be immediately effective and the Parties shall perform their respective obligations on the basis of the agreed amendment.
no Partnership
20. Nothing in this Agreement shall constitute a partnership or employment or agency relationship between the Parties.
Governing Law & Jurisdiction
21.1
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England.
21.2
The Parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation.