terms

TERMS OF PURCHASE

Interpretation

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 Purchase Order and any document referred to in these Terms and Conditions or the Purchase Order;

“Assigned Materials” any and all Materials created, devised, made, designed, invented or supplied by or on behalf of you in connection with the Goods and/or Services;

“Background Materials” the Materials used or delivered by you as part of the Goods and/or Services which are already in existence prior to your provision of the Goods and/or Services and which do not specifically relate solely to the Goods and/or Services;

“Background IPR” any IPR in any Background Materials;

“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;

“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, and which may concern the other Party’s business, plans, ideas, methodologies, specifications, data, financial condition or clients and whether any of the foregoing information is disclosed or obtained before, on or after the date of this Agreement, together with any reproductions of such information or any part of it;

“Delivery Location” the site where we are based, or such other site as we stipulate in the Purchase Order for delivery of the Goods;

“Fees” the Goods Fees and the Services Fees;

“Goods” any goods provided or to be provided to us by you pursuant to this Agreement, as may be more particularly described in the Purchase Order;

“Goods Fees” the fees payable by us to you for your supply to us of the Goods as set out in the Purchase Order;

“Goods Specification” the specification for the Goods as set out in the Purchase Order;

“IPR” 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;

“Materials” any and all materials, works of authorship, deliverables, software (including source code and object code), routines, algorithms, files, multimedia and audiovisual material, tools, processes, systems, methodologies, charts, flowcharts, manuals, databases, database structures, a website’s “look and feel”, content, catalogues, descriptions, products, documents, notes, records, results, reports, ideas, concepts, discoveries, know-how, information, text, data, research, lists, inventions, creations, diagrams, artwork, designs, sketches, models, pictures, photographs, screenshots, drawings, plans, descriptions, specifications, images, logos, styles, graphics, names, devices, domain names and marks (in whatever form and on whatever media); including any additions, enhancements, changes, alterations, modifications or amendments to any of the foregoing;

“Normal Working Hours” [9.30am to 5.30pm on Business Days]

“Party” us or you, and “Parties” means both of us and you;

“Purchase Order” the written document containing specific information relating to the particular goods and/or services supplied or to be arranged to be supplied by you to us;

“Services” any services provided or to be provided to us by you pursuant to this Agreement, as may be more particularly described in the Purchase Order;

“Services Fees” the fees payable by us to you for your supply to us of the Services as set out in the Purchase Order;

“Services Specification” the specification for the Services as set out in the Purchase Order; and “you” or “your” the supplier of goods and/or services to us under this Agreement, as set out in the Purchase Order;

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 for the sending of notices under Clause 12).

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 Goods and Services.

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 us and you 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 Party 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 supply the Goods and/or Services in accordance with the terms of the Purchase Order (as may be varied by us in writing). Submission of a Purchase Order by us to you shall be deemed to be an offer by us to purchase or obtain Goods and/or Services subject to these Terms and Conditions. The performance of any act by you that is consistent with fulfilling the terms of a Purchase Order shall constitute unqualified acceptance by you of these Terms and Conditions.

2.5.

If you provide to us any quotation, order confirmation, sales order or any other document, such document (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 the Purchase Order and any documents referred to in these Terms and Conditions or the Purchase Order, then the following order of precedence shall apply:

2.6.1.

the Purchase Order prevails over

2.6.2.

these Terms and Conditions, which prevail over

2.6.3.

any other document.

2.7.

Each Purchase Order constitutes a separate agreement. There may be more than one such agreement between the Parties in force at the same time as this Agreement.

Our Obligations

We will use our reasonable endeavours to:

3.1.

co-operate with, and be available at all reasonable times for discussion and meetings with, you;

3.2.

in the event that you are permitted to provide the Services, or any part of them, at our premises:

3.2.1.

prepare our premises for provision of the Services;

3.2.2.

inform you of any rules and regulations relevant to your provision of the Services and any timings for provision of the Services at our premises; and

3.2.3.

ensure that the relevant staff and representatives are ready and present at our premises at such times as you reasonably request;

3.3.

prepare the Delivery Location for receipt and provision of the Goods;

3.4.

inform you of any rules and regulations pertaining to the Delivery Location that are relevant to your provision of the Goods and any timings for provision of the Goods; and

3.5.

ensure that our relevant staff and representatives are ready and present at the Delivery Location at any time agreed by us to enable you to perform your obligations under this Agreement.

The Goods

4.1.

You shall ensure that, in addition to conforming in all respect to the relevant provisions of the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982 and with all other statutory and legal requirements:

4.1.1.

the Goods shall be without fault;

4.1.2.

the Goods shall not be “defective” within the meaning of the Consumer Protection Act 1987 and shall be safe to use;

4.1.3.

when used with other products which are reasonably foreseeable that we may make available to our staff and third parties (whether customers or otherwise), the Goods shall not cause those other products to be “defective” within the meaning of the Consumer Protection Act 1987 or unsafe to use;

4.1.4.

the Goods shall conform in all respects to the Purchase Order (including the Goods Specification) and all samples provided or given by you to us, and all written descriptions published by you (whether specifically to us or generally) in respect of the Goods;

4.1.5.

the Goods shall be capable of any standard of performance as may be specified in this Agreement or otherwise agreed in writing between the Parties;

4.1.6.

the Goods shall be of good design compared with other designs found in your industry;

4.1.7.

the Goods shall be of excellent quality, material and workmanship; and

4.1.8.

the Goods and the intended use of them by us and any anticipated user:

4.1.8.1.

conform in all respects with all applicable laws, rules, regulations, bye-laws and codes of practice;

4.1.8.2.

do not infringe the privacy rights or IPR of any third party;

4.1.8.3.

are not defamatory, malicious, abusive, obscene, indecent, discriminatory or harassing;

4.1.8.4.

could not be reasonably considered by us to be inappropriate; and

4.1.8.5.

do not contain any material detrimental to us or any anticipated user.

4.2.

You shall deliver the Goods carriage paid to us to the Delivery Location (and inclusive of all charges for packaging, packing, shipping, insurance, carriage and delivery). If no date is specified for delivery in the Purchase Order or otherwise agreed between us and you, then you shall deliver the Goods within 1 Business Day of the date of the Purchase Order. Time for delivery shall be of the essence.

4.3.

Unless otherwise stipulated by us in writing, deliveries of Goods will only be accepted in Normal Working Hours. You shall off-load the Goods at the place and in the manner directed by us.

4.4.

All Goods shall be subject to our testing and inspection. Without prejudice to any rights that we may have (whether under this Agreement, under statute or anything else) in relation to the delivered Goods, we shall not be deemed to have accepted any Goods until after such testing and inspection have been completed to our satisfaction.

4.5.

You shall package, store and deliver the Goods in the form and manner stipulated in accordance with the Goods Specification and any other instructions provided by us from time to time. You shall securely package the Goods in the package of a type normally used by similar suppliers for the same or similar Goods.

4.6.

You shall set out the following information on the outside of every package (where applicable for the relevant type of Goods):

4.6.1.

Goods description;

4.6.2.

quantity in package;

4.6.3.

any special direction for storage and opening; and

4.6.4.

your name and address.

4.7.

You shall not allow any unauthorised people to have access to any Goods or part-made Goods which are being provided to us.

4.8.

You shall ensure that, at all times before delivery, the Goods being made, or that have been made, are:

4.8.1.

segregated adequately from material deemed to be rejected material; and

4.8.2.

protected from contamination or infestation.

4.9.

Unless we agree otherwise in writing, you shall not deliver Goods that are the subject of a Purchase Order by instalments. Where we agree to accept delivery by instalments, failure by you to deliver any one instalment in accordance with this Agreement shall entitle us to treat the whole Agreement as repudiated, at our option.

4.10.

If the Goods are delivered to us in quantities that exceed the quantities ordered, we shall not be bound to pay for the excess. Any excess shall be and will remain at your risk and will be returnable to you at your risk and expense.

4.11.

Risk in the Goods shall remain with you and shall pass to us on completion of delivery (including off-loading and stacking).

4.12.

Without prejudice to any right of rejection which we may be entitled to exercise, equitable and legal title in the Goods shall pass to us upon the earlier of payment in full (where payment is in one instalment) or in part (where payment is in more than one instalment), or delivery. Title to rejected Goods shall revert back to you upon the later of receipt by you of the rejected Goods and full repayment to us of the Fees in respect of those rejected Goods.

4.13.

You shall ensure that a delivery note accompanies each delivery of the Goods, confirming the date, quantity and type of Goods delivered.

The Services

5.1.

You will provide the Services in accordance with this Agreement including any Services Specification. Time for performance of the Services shall be of the essence. You warrant and undertake that:

5.1.1.

you will provide the Services in a professional manner with the care, skill and diligence required in accordance with best practice and standards prevailing in the industry for similar services;

5.1.2.

you will provide the Services in a safe manner and comply with all health and safety laws, regulations and codes of practice;

5.1.3.

you have the necessary skill and expertise to provide the Services;

5.1.4.

if you use any of our equipment or access any part of our premises, you shall take good care of them, not damage them and restore them, and shall leave them in clean and tidy condition;

5.1.5.

you will work and co-operate with all of our staff and make yourself available at all reasonable times for discussion and meetings with us and our staff and representatives;

5.1.6.

you shall ensure that, if at any point during your provision of the Services, any of your staff or representatives need to attend our premises in order to provide the Services, you shall submit to us a request not less than three Business Days prior to the requirement for such attendance (and we may provide or withhold our consent, or make our consent subject to any conditions, in our absolute discretion). If we grant your request, you shall ensure that, and shall procure that your staff and representatives ensure that, whilst at our premises:

5.1.6.1.

you conform to all rules and regulations and procedures applicable to our premises and our normal codes of practice for security, health and safety and dress practice and any other reasonable requirements, all as we advise to you;

5.1.6.2.

you shall use your best endeavours to cause minimum disruption to us, including minimising any noise and distractions and interference with machinery, not obstructing any right of way and only accessing such parts of our premises as is necessary;

5.1.6.3.

you shall take all reasonable precautions to maintain the security of our premises and protect it from unauthorised access at any time; and

5.1.6.4.

you shall not remove anything from our premises that does not belong to you;

5.1.7.

you will immediately advise us with as much notice as possible if you become aware of any circumstances that may cause delay, disruption or failure to perform the Services and you shall use all reasonable endeavours to mitigate against such problems;

5.1.8.

you have all necessary rights to enter into and perform this Agreement and you have all relevant licences and authorisations;

5.1.9.

you will provide independent and unbiased advice to us in accordance with best industry practice;

5.1.10.

the provision of the Services, the Assigned Materials and the Background Materials, and their content and design, will comply with the requirements of all applicable laws, statutes, regulations, bye-laws, licences and codes of practice;

5.1.11.

you will not do anything which may leave us or our staff with any exposure under any bribery or anti-corruption rules;

5.1.12.

you will, without charge and upon request, provide such training and instructions as we reasonably require to make full use of the Services;

5.1.13.

you will ensure that all people involved with the provision of the Services are fully trained and qualified, and that they shall be fully supervised (where appropriate) in their performance of the Services;

5.1.14.

you will comply with all of our reasonable directions, requests, instructions and requirements in relation to the performance of the Services;

5.1.15.

(before any assignment to us under Clause 9.1) to the extent that we are not the owner, you are the sole and absolute legal and beneficial owner of the entire IPR in the Services, the Background Materials and the Assigned Materials;

5.1.16.

no third party assisted, or will assist, you with creating, devising, making, designing, inventing or supplying the Services, the Background Materials or the Assigned Materials;

5.1.17.

you have not assigned, transferred, licensed, charged, dealt with or in any way encumbered any of the Assigned Materials and will not do so;

5.1.18.

nothing in the Materials or the Services provided by or made available by you contains or will contain any computer programs or programming routines that may be detrimental in any way to us or third parties, including any viruses, trojan horses, trap doors, back doors, easter eggs, worms, time bombs, cancelbots or anything else that is intended to, or may, damage or detrimentally interfere with any system, data or personal information;

5.1.19.

nothing in the Services, the Background Materials or the Assigned Materials infringes the IPR or any other rights of any nature of any person anywhere in the world; and

5.1.20.

nothing in the Services, the Background Materials or the Assigned Materials violates any law, statute, regulation, statutory instrument or bye-law of any jurisdiction or infringes the rights of any third party.

5.2.

You shall indemnify us, and keep us fully indemnified, against all liabilities, demands, claims, proceedings, charges, judgments, fines, costs, expenses, damages and losses (in each of the aforementioned cases 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) which we may incur or suffer as a result of any third party’s claim or suit alleging that the use or possession of any Materials provided or made available by you infringes any IPR belonging to a third party. Without prejudice to such indemnity, in the event that the use or possession of such Materials infringes or, in our opinion, may be held to infringe any IPR of a third party, you may at your option and expense:

5.2.1.

procure for us to continue to use such Materials free from any liability for such infringement; or

5.2.2.

modify or replace such Materials so as to avoid the infringement but providing substantially the same functionality and performance.

Quality

6.1.

Without prejudice to any other right or remedy that we may have, if we reasonably believe that any Goods and/or Services which have been or should have been supplied to us are not or were not supplied in accordance with, or you have not complied in any way with, any of the terms of this Agreement, we may (without prejudice to any other rights or remedies, whether under this Agreement or at law) exercise any one or more of the following remedies at our discretion, whether or not any part of the Goods and/or Services has been accepted or already received by us:

6.1.1.

to reject the Goods (in whole or in part, regardless of whether some of the rejected Goods comply with this Agreement) on the basis that a full refund for the rejected Goods shall be paid promptly by you. You shall, at your own expense within seven days from the date of receipt of notice of rejection (or such other period as is agreed in writing between us and you), remove the rejected Goods. If the rejected Goods have not been removed within that period, we may return to you or destroy the rejected Goods at your risk and expense;

6.1.2.

to reject the Services (in whole or in part, regardless of whether some of the rejected Services comply with this Agreement) on the basis that a full refund for the rejected Services shall be paid promptly by you;

6.1.3.

to rescind this Agreement (in whole or in part);

6.1.4.

at our option and at your expense, to give you the opportunity within a given period stipulated by us to remedy any defect in the Goods and/or Services or to supply or provide replacement Goods and/or Services and carry out any other necessary work to ensure that the terms of this Agreement are fulfilled;

6.1.5.

to refuse to accept any further provision of the Goods and/or Services (under this Agreement or any other agreement between us and you) but without any liability of us to you;

6.1.6.

to carry out at your expense any work necessary to make the Goods and/or Services comply with this Agreement;

6.1.7.

to recover from you any expenditure reasonably incurred by us in obtaining the Goods, or related goods, and/or the Services, or related services, other than from you; and

6.1.8.

to claim such losses and damages as may have been sustained in consequence of your breaches of this Agreement (including additional expenditure incurred as a result of us obtaining replacement goods and/or services).

6.2.

Without prejudice to any other right or remedy, whether under this Agreement or at law, we may require the removal from the Delivery Location or any other of our premises of any individuals upon our reasonable request.

6.3.

You shall indemnify us, and keep us fully indemnified, against all liabilities, demands, claims, proceedings, charges, judgments, fines, costs, expenses, damages and losses (in each of the aforementioned cases 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) which we may incur or suffer as a result of:

6.3.1.

any defective Goods, Services, workmanship, quality or materials; or

6.3.2.

any infringement or alleged infringement of any IPR of any nature in any way relating to the use, manufacture or supply of Goods; or

6.3.3.

any direct or indirect breach or negligent performance or failure or delay in performance of this Agreement by you or your staff or representatives.

Insurance

7. During the term of this Agreement and for a minimum of seven years after its termination, you shall take out and maintain in full force and effect, at your own expense and cost, insurance operating on a worldwide basis with a well-established insurance company of repute to cover your professional indemnity and public liability liabilities under or in connection with this Agreement with a limit of indemnity of not less than £2,000,000 for each and every claim.

Confidentiality

8.1.

Each Party shall keep the other Party’s Confidential Information confidential and shall not:

8.1.1.

use such Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement; or

8.1.2.

disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this Agreement.

8.2.

A Party may disclose the other Party’s Confidential Information to those employees, agents and sub-contractors who need to know such Confidential Information provided that:

8.2.1.

it informs such employees, agents and sub-contractors of the confidential nature of the Confidential Information before disclosure; and

8.2.2.

it does so subject to obligations equivalent to those set out in this Clause 8.

8.3.

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 8.3, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.

8.4.

The obligations of confidentiality in this Agreement shall not extend to any matter which either Party can show:

8.4.1.

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

8.4.2.

was independently developed by it; or

8.4.3.

was independently disclosed to it by a third party entitled to disclose the same; or

8.4.4.

was in its written records prior to receipt.

8.5.

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.

8.6.

On termination of this Agreement (or a Purchase Order), each Party shall:

8.6.1.

return to the other Party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other Party’s Confidential Information;

8.6.2.

erase all the other Party’s Confidential Information from its computer systems (to the extent possible); and

8.6.3.

certify in writing to the other Party that it has complied with the requirements of this Clause 8.6, 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. This Clause 8 shall continue to apply to any such documents and materials retained by a recipient Party following termination of this Agreement (or a Purchase Order) for any reason.

8.7.

This Clause 8 shall continue to apply after termination of this Agreement.

IPR

9.1.

Subject to Clause 9.2, in consideration of the payment by us to you of the Fees, to the extent that we are not already the owner, you hereby assign to us (by way of present and future assignment) absolutely with full title guarantee all IPR in all and any part of the world in the Assigned Materials (whether created, devised, made, designed, invented or supplied before, on or after the date of this Agreement), for the full term of such rights and all renewals and extensions, together with all accrued rights of action, including:

9.1.1.

the right to file an application, claim priority from such application, and prosecute and obtain grant of any IPR in the Assigned Materials or similar protection in or in respect of any country or territory in the world;

9.1.2.

the right to extend to or register in or in respect of any country or territory in the world each and any of the IPR in the Assigned Materials, and each and any of the applications comprised in the IPR in the Assigned Materials or filed as set out above, and to extend or register in, or in respect of, any country or territory in the world any Intellectual Property Right registration or like protection granted on any such applications;

9.1.3.

the absolute entitlement to any IPR granted pursuant to any of the applications comprised in the IPR in the Assigned Materials or filed as set out above; and

9.1.4.

the right to bring, make, oppose, defend, appeal proceedings, claims or actions and obtain relief (and to retain any damages recovered) in respect of any infringement, or any other cause of action arising from ownership, of any of the IPR in the Assigned Materials or any IPR granted on any of the applications in the IPR in the Assigned Materials or filed as set out above, whether occurring before, on or after the date of this Agreement.

9.2.

The Parties acknowledge that, as between them, you shall retain ownership of all Background IPR.

9.3.

We hereby grant to you a non-exclusive, royalty-free licence to use the Assigned Materials and Our Materials to the extent necessary to provide the Goods and/or Services. Such licence shall be non-transferable, non-assignable and non-sublicensable except to the extent that we give our express prior written consent (which may be provided or withheld or conditional, in our absolute discretion). You shall not use or permit the use of the Assigned Materials or Our Materials for any other purpose without our prior written consent (which may be provided or withheld or conditional, in our absolute discretion).

9.4.

You hereby grant to us a royalty-free, worldwide, irrevocable, perpetual, non-exclusive, assignable, sub-licensable licence to use the Background IPR and Background Materials for any purpose in connection with the use and access of the Assigned Materials by us and anyone permitted by us.

9.5.

You irrevocably waive any and all of your moral rights which you may have, and shall procure that any contributor does likewise, anywhere in the world in the Assigned Materials and the Background Materials, so that we and any third party may use and adapt all Assigned Materials and Background Materials in whatsoever way we or such third party determines without infringing such moral rights including the right to be identified, the right of integrity and the right against false attribution.

9.6.

You shall fully and promptly execute all documents and instruments and do all acts, deeds and things as we may require from time to time to:

9.6.1.

vest absolute legal and beneficial ownership of IPR in the Assigned Materials in us or our nominee;

9.6.2.

perfect our or our nominee’s titles to its IPR anywhere in the world; and

9.6.3.

enable us and our nominee to protect and enforce our IPR including, if requested, assisting in legal proceedings.

9.7.

You will not do or omit to do any act, matter or thing in consequence of which the IPR’s protection that might (but for such act or omission) otherwise have been available is or might be lost, forfeited or cease to be available.

9.8.

Every week in which you have any involvement with any Assigned Materials or Background Materials, and in any event on our request, you will without fail disclose and deliver to us all Assigned Materials and Background Materials in complete form and all information, data and instructions as to such Materials and the Goods and/or Services in such form and on such media as we may reasonably require and in any event to allow us or our licensees to be able to use, make available, invent, create, devise, make, design, supply, maintain, add to, enhance, change, alter, modify or amend any Assigned Materials.

9.9.

Upon our request, you will delete all Assigned Materials from any computer disks, tapes or other material in your possession or under your control or deliver up or destroy all materials and tangible items in your possession or under your control which are derived from, contain or reflect, any Assigned Materials, and you will not retain any copies in any form or in any medium.

9.10.

In performing this Agreement, each Party shall comply with all applicable data protection legislation.

Fees

10.1.

In consideration for obtaining the Goods and/or the Services provided by you pursuant to this Agreement, we will pay to you the relevant Fees.

10.2.

The Fees shall be as set out in the Purchase Order.

10.3.

Unless the Purchase Order provides otherwise:

10.3.1.

you shall provide us with a proper invoice for the Fees, showing VAT separately, after we have received the Goods in full, and/or upon completion of the provision of the Services, to our reasonable satisfaction; and

10.3.2.

we shall pay you for all undisputed Fees within 45 days following our receipt of your proper invoice with any relevant accompanying documentation.

10.4.

Unless we and you otherwise agree in writing, all sums due to you are inclusive of VAT and of any sales, import and export taxes, customs and duties.

10.5.

You will be solely responsible for all taxes, national insurance or other contributions which may be payable out of, or as a result of, the receipt of any Fees or other monies paid or payable in respect of the Services. You will indemnify us against all costs, claims, expenses or proceedings arising out of or in connection with such payments.

10.6.

If we are late in paying any part of any monies due to us under this Agreement and such payment remains outstanding for 30 days following you providing notice to us of such outstanding payment, you may charge interest on the overdue amount due but unpaid at 2% above the Bank of England’s base rate 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.

Termination

11.1.

This Agreement will commence on the date on which it is entered into and, unless terminated earlier in accordance with the termination provisions under this Agreement.

11.2.

A contract formed pursuant to these Terms and Conditions in respect of a Purchase Order will continue in full force and effect until the latest of:

11.2.1.

the conclusion of the provision of the Goods and/or Services to our reasonable satisfaction in accordance with that Purchase Order; or

11.2.2.

the conclusion of payment of all sums due under that Purchase Order.

11.3.

Unless terminated earlier in accordance with Clause 11.4 or any other of the termination provisions under this Agreement in respect of this Agreement, this Agreement shall continue in full force and effect until either Party gives to the other Party no less than three months’’ notice in writing.

11.4.

We may terminate this Agreement immediately by notice to you if:

11.4.1.

you are in material breach of any of your obligations under this Agreement, or any other agreement between us and you, which is incapable of remedy;

11.4.2.

you fail to remedy, where capable of remedy, any material breach of any of your obligations under this Agreement, or any other agreement between us and you, after having been required in writing to do so within a period of no less than 10 Business Days;

11.4.3.

you are in persistent breach of any of your obligations under this Agreement or any other agreement between us and you; or

11.4.4.

you give notice to any of your creditors that you have suspended or are about to suspend payment or if you shall be unable to pay your debts within the meaning of Section 123 of the Insolvency Act 1986, or an order is made or a resolution is passed for your winding-up or an administration order is made or an administrator is appointed to manage your affairs, business and property or a receiver and/or manager or administrative receiver is appointed in respect of all or any of your 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 you take or suffer any similar or analogous action in consequence of debt in any jurisdiction.

11.5.

Termination of this Agreement (or a Purchase Order) shall be without prejudice to any of our accrued rights or remedies.

11.6.

Termination of this Agreement (or a Purchase Order) shall not affect the coming into force, or continuance in force, of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.

Notices

12.1.

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 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.

12.2.

A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 12.1; 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.

12.3.

The provisions of Clauses 12.1 and 12.2 shall not apply to the service of any proceedings or other documents in any legal action.

Assignment

13.1.

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).

13.2.

If, with such consent, you subcontract any of your obligations to a subcontractor, you will be, and remain, fully liable for the performance of any subcontractor you appoint.

Changes

14. Subject to Clause 2.4, no change to this Agreement shall be binding unless it is agreed in writing signed by each of us and you.

Severance

15.1.

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.

15.2

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 enforceable.

A Waiver

16. 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

17. A person who is not a Party shall not have any rights under or in connection with this Agreement.

No Partnership

18. Nothing in this Agreement shall constitute a partnership or employment or agency relationship between the Parties.

Governing Law and Jurisdiction

19.1.

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.

19.2.

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.

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 party’s 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 supplier’s) 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 Party’s 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 Party’s 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.