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DRAFT LTD

TERMS AND CONDITIONS OF BUSINESS

 

THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).

  1. Interpretation

The following definitions and rules of interpretation apply in these Conditions.

  • Definitions:

Additional Services, means any services provided by the Supplier to the Client which are outside the initial proposal in the Booking Form and Brief.

Ad-Hoc Services, means the fixed Services to be provided as set out in the Booking Form.

Bespoke Software, means all final software provided by the Supplier for the purposes of or pursuant to the Services, excluding, either in whole or in part, Supplier Software, Third Party Software and any already existing modules and/or codes thereof.

Booking Form, means the form to be prepared by the Supplier and completed and signed by the Client including the Brief and, in the absence of such form, the specifications as shall be agreed between the Supplier and the Client in writing from time to time.

Brief, means the description or Brief of the Services provided in writing by the Supplier to the Client, together with the Charges, or any creative brief which may be sent to the Supplier by the Client, as may be included as a Schedule to this Contract.

Business Day, means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Business Hours means the hours of 9am to 5pm GMT Monday to Friday and 9am to 4pm GMT on Fridays.

Charges, means the charges payable by the Client for the supply of the Services in accordance with clause 5.

Client, means the person or firm who purchases Services from the Supplier.

Client Data, means data, in whatever form, owned, held and/or controlled by the Client which is made available to the Supplier or is otherwise created, collated or collected and/or accessed by the Supplier in connection with the Services;

Client Default, has the meaning set out in clause 4.2.

Client Materials, means any materials provided by the Client to the Supplier.

Client Software, means all software, the Intellectual Property Rights in which are owned by the Client, or licensed to the Client by a Third Party (other than for the purposes of or pursuant to the Services) which are required to be used by the Supplier for the purposes of or pursuant to the Services.

Conditions, means these terms and conditions as amended from time to time in accordance with clause 11.5.

Contract, means the contract between the Supplier and the Client for the supply of Services in accordance with these Conditions and the Booking Form if and as may be signed by the Client from time to time and the signing of the Booking Form and/or the delivery of the Services by the Supplier to the Client shall be deemed to be unconditional acceptance by the Client of these Conditions and the BookingForm.

Contract Commencement Date, means the date set out in the Booking Form.

Control, has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures, as defined in the Data Protection Legislation

Data Protection Legislation, the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications);

Deliverables, means all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services.

Intellectual Property Rights, means patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, 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.

New Materials, means all final materials (including any presentations, reports, specifications, designs, user guides, documentation and works) provided by the Supplier for the purposes of or pursuant to the Services or arising out of the provision of the Services and/or Deliverables excluding Software, Supplier Materials, Supplier Materials and Third Party Materials.

Pre-existing Intellectual Property Rights, means Intellectual Property Rights existing before the Contract Commencement Date.

Retainer Services, means the ongoing Services to be provided, subject to a minimum spend of £20,000 per year by the Client, as set out in the Booking Form.

Services, means the Ad-Hoc or Retainer Services, including the Deliverables, supplied by the Supplier to the Client as set out in the Booking Form and Brief or as may be agreed in writing between the parties from time to time.

Software, means the computer programs used by the Supplier from time to time and any Modification which is acquired by the Client during the subsistence of this Contract.

Supplier, means Draft Ltd registered in England and Wales with company number 12089738.

Supplier Materials, means all working files which are not the final Deliverables, materials, equipment, documents, ideas, concepts, working production files and other property conceived or designed by the Supplier, the Intellectual Property Rights in which are owned by the Supplier and which are either Deliverables or are incorporated in Deliverables, excluding Third Party Materials, New Materials and Software and including Pre-existing Intellectual Property Rights.

Supplier Software, means software which is proprietary to the Supplier, including any ideas, concepts and working production files.

Third Party Materials, means all materials which are proprietary to any third party and which are either Deliverables or are incorporated in Deliverables, excluding Supplier Materials, New Materials and Software.

Third Party Software, means software which is proprietary to any third party and which has not been created pursuant to or in connection with the Services.

  • Interpretation:
    • A reference to legislation or a legislative provision:
      • is a reference to it is in force as at the date of this Contract; and
      • shall include all subordinate legislation made as at the date of this Contract under that legislation or legislative provision.
    • Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
    • A reference to writing or written includes fax and email.
  1. Basis of contract
    • The Booking Form constitutes an offer by the Client to purchase Services in accordance with these Conditions.
    • The offer to purchase the Services from the Supplier shall be deemed to be accepted and the Contract shall come into existence on the Contract Commencement Date as indicated in the Booking Form or, in the absence of a Booking Form, signed or otherwise, on the date in which the Supplier performed any act in the provision of any of the Services.
    • Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
    • These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
    • Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
  2. Supply of Services
    • The Supplier shall supply the Services to the Client in accordance with the Booking Form and/ or Brief (as applicable) in all material respects.
    • The Supplier shall provide the Services to the Client from the date specified in the Booking Form and/ or Brief (as applicable) and shall continue to provide the Services, unless terminated:
      • for ongoing Retainer Services by either party terminating the agreement in accordance with clause 9;
      • for Ad-hoc Services, until the Services in the given Booking Form have been completed or as otherwise agreed in writing.
    • The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Booking Form and/ or Brief (as applicable), but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
    • The Supplier shall not be under any obligation to perform the Services on any specific day of the week unless otherwise agreed in writing. In respect of Retainer Services any agreed number of hours worked per day or week shall be an average over the entire retainer and there shall be no requirement for the Supplier to dedicate a specific number of hours to the Services on any specific day or during any particular period of time.
    • The Supplier reserves the right to make changes to the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Client in any such event.
    • Any Additional Services requested by the Client and agreed to be provided by the Supplier outside the scope of the initial Booking Form or Brief, unless otherwise agreed by the parties, shall be provided in accordance with these Conditions.
    • The Supplier warrants to the Client that the Services will be provided using reasonable care and skill.
    • The Client acknowledges that the Services shall be deemed signed off as soon as the Deliverables have been provided in a suitable file format.
  3. Client’s obligations
    • The Client shall:
      • ensure that the terms of the Booking Form and/ or Brief (as applicable) and any information it provides are complete and accurate;
      • co-operate with the Supplier in all matters relating to the Services;
      • provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities as reasonably required by the Supplier;
      • provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
      • obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
      • keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Client’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation;
      • comply with any additional obligations as set out in the Booking Form; and
      • Dedicate sufficient time of any staff member as required to complete provision of the Services.
    • If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
      • without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays the Supplier’s performance of any of its obligations;
      • the Supplier shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 2; and
      • the Client shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Client Default.
    • The Client shall not, unless otherwise agreed in writing, at any time from the Contract Commencement Date to the expiry of 12 months after the last date of the supply of the Services, solicit or entice away from the Supplier or employ or contract with or attempt to employ or contact with any person who is, or who has been, engaged as an employee or subcontractor of the Supplier in the provision of the Services for the Client.
  4. Charges and payment
    • The Charges to be paid for the Services by the Client are set out in the Booking Form and/or Brief (as applicable).
    • Payment of the Charges shall be made on presentation of an invoice or as set out in the Booking Form.
    • Unless otherwise notified in the Booking Form or Brief (as relevant) the day rates charged by the Supplier shall be £850 per day for any individual provided by the Supplier (as applicable).
    • The Suppliers daily fee rates for each individual are calculated on the basis of an avergage eight-hour day worked on Business Days.

The Supplier shall be entitled to charge an overtime rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside of Business Hours.

  • The Supplier shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
  • The Supplier reserves the right to amend the day rates set out in the Booking Form and/or Brief (as applicable) and will notify the Client in writing at least 20 Business Days in advance of any change to the day rates coming into effect. Should the Client not agree to such change, the Client shall have the option within 10 Business Day from the date the Supplier provides notice to the Client of the change to the day rates, to terminate this Contract. Upon termination the Supplier will cease to provide the Services and the Client agrees to pay for all Charges and expenses incurred by the Supplier up until termination.
  • Where services are supplied on a Retainer basis the Supplier shall be entitled to increase the charges in line with inflation with effect from each anniversary of the Contract Commencement Date by giving the Supplier written notice no less than 2 months prior to the next anniversary of the Contract Commencement Date.
  • If the Supplier cannot provide a fixed fee at the outset of the Services, the Supplier will endeavour, if possible, to provide an estimate of fees. However, where the scope of work required of the Supplier is larger than initially anticipated and/or not covered either by such estimate or by a fixed fee quote provided, a new estimate/fixed fee quote will be provided. This may happen where, for example, there are:
    • variations to the initial instructions; and/or
    • complications which were not or could not have been foreseen at the initial stage of the Services.
  • The Supplier will then advise the Client in advance of any Additional Services that are required and agree the new estimate/fixed fee quote with the Client.
  • Retainer Services are subject to a minimum annual spend of £20,000 (unless otherwise agreed in the Scope of Work or Brief). Where the Client has engaged the Supplier for Retainer Services it is agreed that the Charges invoiced and payable over any 12 month period running from the Contract Commencement Date or an anniversary thereof (as relevant) shall be at least £20,000 regardless of the time spent performing the Services.
  • The Supplier shall invoice the Client as set out in the Booking Form and the Charges for the Services shall be paid by the Client, all as set out in the Booking Form. Time for payment shall be of the essence of the Contract.
  • All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Client, the Client shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
  • If the Client fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under Clause 10, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 10 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
  • All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
  1. Intellectual property rights
    • Except as expressly set out in the Conditions:
      • The Client shall not acquire any right, title or interest in or to the Intellectual Property Rights of the Supplier or its licensors, including Intellectual Property Rights in:
        • Supplier Software;
        • Supplier Materials;
        • the Third Party Software;
        • the Third Party Materials;
        • Supplier’s Pre-existing Intellectual Property Rights.
      • The Supplier shall not acquire any right, title or interest in or to the Intellectual Property Rights of the Client or its licensors, including:
        • the Client Data;
        • the Client Software;
        • the Client Materials;
        • Client’s Pre-existing Intellectual Property Rights.
      • In respect of Retainer Services, the Intellectual Property Rights in all New Materials and/or Bespoke Services shall belong to and vest in the Supplier. The Supplier hereby grants the Client a non-exclusive, non-transferable licence to use the New Materials and Bespoke Software and such licence shall be limited to the Conditions set out in the Booking Form. The rights under the licence shall hereby be assigned to the Client on the 2nd anniversary of the Retainer Services, unless terminated beforehand in which case there shall be no assignment.
      • In respect of Ad-hoc Services, the Intellectual Property Rights in all New Materials and/or Bespoke Software shall belong to and vest in the Client on the written assignment by the Supplier and payment by the Client of the Charges. Such assignment of New Materials and/or Bespoke Software shall be limited to the conditions set out in the Booking Form. The Supplier hereby assigns, and shall procure that all third parties who may have any right, title or interest in New Materials and/or Bespoke Software shall assign, in each case by way of present assignment of future rights, all New Materials and/or Bespoke Software absolutely to the Client with full title guarantee (free from all charges and other rights exercisable by third parties). The Supplier shall procure the waiver of any Moral Rights in or relating to any New Materials and/or Bespoke Software.
      • The Client hereby grants the Supplier a non-exclusive, non-transferable licence to use the Client Software, Client Materials and Client Data solely to the extent and for the period necessary for the Supplier to perform its obligations under the Conditions, such licence to terminate no later than on the termination of the Conditions. The Supplier shall comply with any terms or Booking given by the Client from time to time in relation to the use of the Client Software, Client Materials and Client Data.
      • The Supplier represents that it has and will continue to have the necessary rights and licences to comply with its obligations under this Clause 6 and undertakes to execute, do and/or procure the execution or doing of such things as are reasonably necessary in order to achieve, perfect or record the assignment or grant of rights and licences in accordance with this Clause 6.
      • In respect of all Third Party Materials and Third Party Software, the Client acknowledges that the Supplier has obtained a licence for it to use such rights and it is the Clients own responsibility to buy its own individual licence in order to utilise the Third Party Materials and Third Party Software. The Supplier shall not be required to supply the Services until the Client has an individual licence agreement in place and the Supplier reserves the right to request evidence of such licence having been obtained.
      • The Client acknowledges that the Supplier shall not be liable under any circumstances for any 3rd party intellectual property infringement. The Client is responsible for carrying out all trade mark and other intellectual property searches and ensuring the brief given to the Supplier does not infringe on any one else’s rights.
      • The Supplier hereby reserves the right to use any and all work created in the New Materials and/or Bespoke Software for the purpose of advertising, case studies and marketing on any medium, and the Client hereby grants the Supplier a non-exclusive, transferable, irrevocable, royalty free licence to use the New Materials and/or Bespoke Software and such other Intellectual Property Rights that may be required for such purpose.
      • The Client shall procure that the New Materials and/or Bespoke Software shall identify the Supplier as the author and creator of the works.
  1. Data protection
    • Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7.1 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this clause 7.1, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
    • The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the controller and the Supplier is the processor.
    • Without prejudice to the generality of clause 7.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.
    • Without prejudice to the generality of clause 7.1, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Contract:
      • process that personal data only on the documented written instructions of the Client unless the Supplier is required by Applicable Laws to otherwise process that personal data. Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Client;
      • ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
      • ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
      • not transfer any personal data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
        • the Client or the Supplier has provided appropriate safeguards in relation to the transfer;
        • the data subject has enforceable rights and effective legal remedies
        • the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
        • the Supplier complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the personal data;
      • assist the Client, at the Client’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
      • notify the Client without undue delay on becoming aware of a personal data breach;
      • at the written direction of the Client, delete or return personal data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the personal data; and
      • maintain complete and accurate records and information to demonstrate its compliance with this clause 7 and immediately inform the Client if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
      • The Client consents to the Supplier appointing third party processors of personal data under the Contract. The Supplier confirms that it has entered or (as the case may be) will enter with any third party processor into a written agreement, which reflects and will continue to reflect the requirements of the Data Protection Legislation, and:
        • is substantially on that third party’s standard terms of business; or
        • incorporates terms which are substantially similar to those set out in this clause 7.
      • As between the Client and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause 7.
  1. Limitation of liability: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
    • Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
      • death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
      • fraud or fraudulent misrepresentation; or
      • breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
    • Subject to clause 8.1:
      • The Supplier shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
      • The Supplier’s total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the value of the Charges paid under the Contract.
    • The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
    • This clause 8 shall survive termination of the Contract.
  2. Termination
    • In respect of Ad Hoc Services the Contract shall terminate upon completion of the Services or in accordance with clause 9.4.
    • In respect of Retainer Services the Contract shall run for a period of 12 months from the Contract Commencement Date and shall automatically renew on the first anniversary of the Contract Commencement Date and on each subsequent anniversary thereof for successive 12 month periods unless terminated in accordance with clause 9.3.
    • Either party may terminate the Contract where Retainer Services are being provided by giving written notice no less than 3 months prior to the next anniversary of the Contract Commencement Date.
    • Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
      • the other party commits a material breach of the Contract and if such a breach is remediable fails to remedy that breach within seven days of that party being notified in writing of the breach;
      • the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or being a company is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or being an individual is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or being a partnership has any partner to whom any of the foregoing apply;
      • the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than where a company for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
      • a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party being a company other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
      • the other party being an individual is the subject of a bankruptcy petition or order;
      • a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
      • an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party being a company;
      • a floating charge holder over the assets of that other party being a company has become entitled to appoint or has appointed an administrative receiver;
      • a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
      • any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 1.2 to clause 9.1.9 inclusive;
      • the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
      • the other party being an individual dies or, by reason of illness or incapacity whether mental or physical, is incapable of managing his own affairs or becomes a patient under any mental health legislation.
    • Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Client if:
      • the Client fails to pay any amount due under the Contract on the due date for payment; or;
      • there is a change of control of the Client.
    • Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Client and the Supplier if:
      • the Client fails to pay any amount due under the Contract on the due date for payment;
      • the Client becomes subject to any of the events listed in clause 2.3 or clause 9.2.4, or the Supplier reasonably believes that the Client is about to become subject to any of them; and
      • the Supplier reasonably believes that the Client is about to become subject to any of the events listed in clause 2.2.
  1. Consequences of termination
    • On termination or expiry of the Contract:
      • the Client shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Client immediately on receipt;
      • In respect of Retainer Services where the minimum spend of £20,000.00 has not been incurred the Supplier shall invoice the Client in respect of the difference between £20,000 and what has been spent, such invoice payable immediately;
      • the Client shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then the Supplier may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
    • Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
    • Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
  2. General
    • Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
    • Assignment and other dealings.
      • The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
      • The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
      • Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, Clients, clients or suppliers of the other party, except as permitted by clause 3.2.
      • Each party may disclose the other party’s confidential information:
        • to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 3; and
        • as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
      • Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
    • Entire agreement.
      • The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
      • Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
      • Nothing in this clause shall limit or exclude any liability for fraud.
    • Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
    • Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
    • If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Contract deleted under this clause 11.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
      • Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the Booking Form.
      • Any notice or communication shall be deemed to have been received:
        • if delivered by hand, at the time the notice is left at the proper address;
        • if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
        • if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause (c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
      • This clause 8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
    • Third party rights.
      • Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
    • Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
    • Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.