”Conditions” the terms and conditions set out in this document and any other special terms agreed in writing by the Supplier;
“Contract” a contract for the supply of Services and/or Deliverables by the Supplier to the Customer on the terms set out in the Conditions, including the terms of any Estimate;
“Customer” any person, firm or company who purchases Services from the Supplier;
“Deliverables” any Documents, products (whether by way of intermediate product, finished product, Third Party Product or otherwise), photographs, photographic materials, other materials or other deliverables supplied by the Supplier to the Customer in connection with the Services;
“Design” any draft design artwork and visuals of any kind which are part of or connected to the Services;
“Document” any document that is not an Electronic File, including, without limitation, any document in writing and any drawing, production, printing, mailing, map, plan, diagram, drafts, design, picture or other image;
“Electronic File” any text, drawing, production, mailing, map, plan, diagram, design, picture, image or other matter supplied or produced by either party in digitised form (including Portable Disc Format (“PDF”)) on disc, through a modem, or by FTP Server or any other form of communication link;
“Estimate” the Estimate for the Services to be provided by the Supplier, as agreed between the parties and annexed to the Contract, setting out details of the Services, Deliverables, any specifications and such other information as the parties may consider appropriate
“Input Material” all Documents, information and materials provided by the Customer relating to the Services and/or Deliverables including (without limitation) data and specifications;
“Intellectual Property Rights” all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral 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 for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Preliminary Work” all conceptual and preparatory work done (including, without limitation, design, art work and colour matching);
“Services” any Design, advisory, photographic, multimedia, marketing or exhibition-related services (including exhibition construction) expressly stated or referred to in the Estimate and any other services agreed in writing between the parties and supplied by or on behalf of the Supplier;
“Supplier” me&you a trading name of Hansell Design and Marketing Limited, registered in England under number 07300267 and having its registered office at 1 Bligh’s Road, Sevenoaks. TN13 1DA
“Third Party Product” any image or other Deliverable, the Intellectual Property Rights and other rights to which belong to a third party;
1.2 Headings in these Conditions shall not affect their interpretation.
1.3 A person includes a natural person, corporate or unincorporated body whether or not having separate legal personality).
2 CONDITIONS APPLICABLE
2.1 These Conditions and the provisions in the Estimate shall apply to and be incorporated into the Contract to the exclusion of all other terms and conditions, including any terms and conditions which the Customer may purport to apply under any purchase order, confirmation or other document.
2.2 No variation to these Conditions or the Contract shall be binding unless agreed in writing between the Customer and a director of the Supplier.
2.3 These Conditions and the Estimate constitute the whole agreement between the parties and supersede all previous agreements, arrangements and understandings between the parties whether written or otherwise. If there is any conflict between these Conditions and the Estimate, the documents shall be taken in priority with the Estimate taking precedence over these Conditions.
2.4 Unless otherwise agreed by the Supplier, the Customer shall not directly or indirectly liaise with or contact, except through the Supplier, any Sub-contractor or any other person regarding the Services and/or Deliverables or the Contract and/or performance of the Contract. This restriction shall apply for the duration of the Contract and for 6 months thereafter.
3 THE CONTRACT
3.1 The Supplier shall submit to the Customer an Estimate which shall specify the Services and/or Deliverables to be supplied and the price payable. Estimates are given by the Supplier on the basis that no Contract shall come into existence except in accordance with condition 3.2. All Estimates shall be subject to these Conditions. Any Estimate is valid for a period of 30 days from its date, provided that the Supplier has not previously withdrawn it.
3.2 The Customer’s acceptance of an Estimate submitted by the Supplier shall be deemed to be an offer by the Customer to purchase those Services and/or Deliverables pursuant to these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than by a written acknowledgement issued and executed by the Supplier. Once the Supplier has issued a written acknowledgement, a Contract for the supply and purchase of the Services and/or Deliverables on these Conditions will be established.
4 THE PRICE AND PAYMENT
4.1 The charges for the Services and/or Deliverables shall be set out in the Estimate and shall be agreed with the Customer in advance of commencement of Services. Any delivery charges shall be charged in addition.
4.2 Charges for Services shall be calculated in accordance with the Supplier hourly rate set out in the Estimate and indicated by the costs as set out in the Estimate and agreed with the Customer, as may be amended in agreement with the Customer if the actual time taken is more or less than the estimated time included in the Estimate.
4.3 The Customer shall be charged for all work carried out in connection with the Services and/or Deliverables. This includes all Preliminary Work, whether or not the Customer agrees to the Supplier proceeding to take the Preliminary Work forward into production.
4.4 Any amendments or alterations made to the Deliverables or Designs (including draft Designs) by or at the request of the Customer, other than those correcting an error made by the Supplier, shall be charged for at the Supplier’s standard hourly rate in addition to the Charges.
4.5 If the parties agree for the Supplier to provide further Services and/or Deliverables, which are not included in the Estimate, or if work included in the Estimate takes longer than anticipated, the Customer will be informed prior to any additional or further work being undertaken.
4.6 Where the Customer needs to bring forward a timeline for completion, the Supplier shall recalculate the charges on the basis of an agreed multiple of the Supplier hourly rate (based on the urgency of the work) and the Supplier shall prepare a revised Estimate for the Customer, which the Customer shall agree before the Services and Deliverables can be performed to the revised timeline.
4.7 If amendments or further work is required due to the Customer supplying inadequate copy, incorrect or incomplete instructions or insufficient materials or the Customer delays in providing copy, instructions or materials, the Customer shall be charged for the additional Services and/or Deliverables at the Supplier’s then hourly rate and shall be invoiced in accordance with this condition 4.
4.8 The Supplier reserves the right to increase the costs of the Deliverables and Services if the cost of providing the Deliverables and Services increases due to a sub-contractor’s increased costs of manufacture, production or materials. The Supplier shall notify the Customer in writing as soon as practicable of any increase in costs.
4.9 For successful implementation of design and multimedia projects, the Supplier requires that the Customer signs-off each stage of the production process, as detailed in the Estimate. The Customer shall receive the first invoice at the earlier of the end of the first month of Service provision, or completion of the applicable stage. Thereafter Charges shall be payable [monthly or on completion of subsequent stages, or as otherwise agreed in writing].
4.10 For exhibitions, payment for the design and build of exhibition stands shall be due as follows:
(i) 25% of the applicable charges once the design is agreed;
(ii) 50% of the applicable charges six weeks prior to the commencement of the exhibition; and
(iii) 25% of the applicable charges within 14 days of the close of the exhibition.
4.11 The Customer acknowledges that it is responsible for purchasing the actual stand space at the exhibition.
4.12 Where the Supplier buys in Third Party Product or third party Services on the Customer’s behalf, as agreed with the Customer, the Customer shall reimburse the Supplier the cost as shown in the Supplier’s invoice.
4.13 Invoiced amounts shall be due and payable in full within 14 days of receipt of the invoice by the Customer without any set off or other deductions whatsoever. In the event that the Customer’s procedures require that an invoice be submitted against a purchase order for payment, the Customer shall be responsible for issuing such purchase order before the Services and/or Deliverables are supplied otherwise the invoice shall be payable in any event.
4.14 If the Customer fails to make payment on the due date, then without prejudice to any other rights or remedies, the Supplier may:
4.14.1 suspend the Contract, including deliveries of any Designs or Deliverables due to the Customer, or terminate the Contract; and/or
4.14.2 charge interest on the outstanding amount (both before and after any judgment) at the daily rate of 4% above the base rate from time to time of Lloyds Bank Plc from the due date until the outstanding amount is paid in full and the Customer shall pay the interest immediately on demand. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
4.15 If the Customer terminates any Contract or order prior to completion of the Services and/or delivery of the Deliverables, it shall pay, for all goods and materials purchased by the Supplier for use in the Services at the date of cancellation and for all Services provided up to the date of cancellation.
4.16 For photography Services payment is due from the Customer within 14 days of the date of the Supplier’s invoice.
5 INTELLECTUAL PROPERTY
5.1 Subject to any agreement to the contrary (which shall be evidenced in writing pursuant to condition 2.2), all Intellectual Property Rights in any Designs or Deliverables created or generated by the Supplier for the Customer as part of the Services will vest in and remain with the Supplier until the Supplier receives payment in full. The Customer shall not do anything that may infringe upon or in any way undermine the Intellectual Property Rights in and to such Designs or Deliverables prior to payment being received in full by the Supplier.
5.2 Any assignment of Intellectual Property Rights under condition 5.1 shall not include any Intellectual Property Rights in any Third Party Products, any draft Designs or Preliminary Work submitted by the Supplier to the Customer that are not accepted by the Customer or any know-how, tools, Documents, or any other materials used in the provision of the Services by the Supplier (including any that existed prior to commencement of the Contract).
5.3 Subject to condition 5.1, it is prohibited for the Customer to share with a third party any draft Designs (whether being submitted for a pitch or otherwise) or Preliminary Work that is submitted by the Supplier but not accepted by the Customer. Where the Design or Preliminary Work or other materials have been submitted by Electronic File, the Customer shall only use the Electronic File for the limited purposes of approving the Design or Preliminary Work contained in it and shall not in any way transfer or distribute the Electronic File to a third party.
5.4 If any allegation or infringement of UK Intellectual Property Rights is made by a third party, or the Supplier suspects may be made by a third party, the Supplier may amend, modify, alter or replace any Deliverables or Designs at any time and at its own expense in order to avoid such an infringement (or suspected infringement) or for the Customer to have the right to continue using the Deliverables or Designs.
5.5 The Customer shall indemnify the Supplier against any loss, claim, expenses, costs, demands or liabilities, whether direct or indirect, arising out of a claim by a third party for alleged infringement of Intellectual Property Rights if it arises from the use of any Input Materials in the Services and/or Deliverables.
6 DELIVERY, RISK AND RETENTION OF TITLE
6.1 The risk in all Deliverables shall pass to the Customer as from delivery. Any Input Material supplied is at the Customer’s risk while it is in the Supplier’s possession or in transit to or from the Customer. Subject to condition 5, title to the Deliverables shall not pass until the Customer has made payment in full and no other sums whatsoever are due from the Customer to the Supplier. Until title in the Deliverables passes to the Customer, in accordance with this condition, the Customer shall hold the Deliverables on a fiduciary basis as bailee for the Supplier.
6.2 On completion of the Services and/or Deliverables, the Supplier shall store all Input Material and any Deliverables for a maximum of 3 months after which time they may be destroyed without notice.
6.3 The Supplier shall use reasonable endeavours to deliver the correct quantity of Deliverables. However, where the Services include printing, the Customer acknowledges that some variation is inherent in the print process and understands that minor variations of 5 to 10% may occur.
6.4 Subject to condition 6.5, time for delivery shall not be of the essence. The Supplier will notify the Customer of any delays and will use all reasonable endeavours to meet the timelines agreed, however these are indicative only.
6.5 Where the Supplier is designing and building a stand for an exhibition as part of the Services, time shall be of the essence for delivering the stand for use at the exhibition.
7 FORCE MAJEURE
The Supplier shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), difficulties in obtaining raw materials, default of any agents, sub-contractors or suppliers, failure of a utility service or transport network, act of God, war, riot, civil commotion, terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors. The Supplier agrees to notify the Customer in writing of its inability to meet its obligations in relation to the Services for the reasons set out in this condition. Any time Estimate or fixed date agreed for completion of the Services shall be extended by the length of the delay, but if the delay extends beyond thirty days either party shall have the right to cancel the Contract without compensation having advised the other party in writing of its intention to do so.
8.1 The Supplier shall use reasonable endeavours to provide the Services and to deliver the Deliverables to the Customer, in accordance in all material respects with the Contract.
8.2 The Supplier shall use reasonable endeavours to adhere to any dates proposed by either party for the provision of Services, however any such date is to be treated as an Estimate only and the Supplier accepts no liability for failure to meet such dates. Time shall not be of the essence for performance of the Services.
8.3 The Supplier shall not be required to print or in any way produce for the Customer anything which in the Supplier’s reasonable opinion is or may be illegal, offensive, derogatory, defamatory or an infringement of any rights of a third party.
8.4 As part of the Preliminary Work, the Supplied shall submit to the Customer the number of concept ideas for the Deliverables set out in the Estimate. Any additional concept ideas requested by the Customer shall be charged in addition.
8.5 The Customer shall:
8.5.1 co-operate with the Supplier in all matters relating to the Services and/or Deliverables;
8.5.2 confirm in writing that the draft Designs or any samples for the Deliverables are accurate and error-free;
8.5.3 provide to the Supplier, at the Customer’s own expense, such Input Material and other information as the Supplier may reasonably require within sufficient time to enable it to provide the Services in accordance with the Contract; and
8.5.4 obtain and maintain all necessary Intellectual Property Rights licences and consents in relation to the Services before the date on which the Services are to start;
8.6 The Customer is responsible for ensuring that all Input Material and other information submitted to the Supplier in connection with the Services are accurate and for keeping copies of such materials. The Supplier is not responsible for checking the accuracy or integrity of any Input Material or other information supplied by the Customer. If, in the Supplier’s reasonable opinion, any of the Input Material is not suitable for the intended use in the Services and/or Deliverables, the Supplier shall inform the Customer and the Supplier may reject the Input Material or make a correction to the Input Material (at the Customer’s cost) in order to achieve the best results but shall have no liability for the quality of Deliverables using the corrected Input Material.
8.7 The Customer shall be charged for any additional costs incurred due to shortages of information arising from the Customer’s delay or failure to provide sufficient Input Material.
8.8 It is the Customer’s responsibility to ensure that all proofs submitted to it by the Supplier for approval, including proofs for Preliminary Work, Third Party Products and other Deliverables, are accurate and meet its requirements. The Supplier is not liable for any errors that are not corrected in the proofs approved by the Customer or where the Customer waives the requirement to examine such proofs.
8.9 For successful implementation of Services, the Supplier requires written sign-off from the Customer at each stage of the production process to confirm the Customer’s approval. A Customer sign-off, either by e-mail or in writing, shall accompany each project stage where clearly specified in the schedule of work or at the Supplier’s request. The Supplier shall not start a stage of a project before sign-off on the previous stage (except for the first stage). To ensure control, a single point of contact for sign-offs should be assigned by the Customer. The terms of sign-offs shall be included in the Estimate. The Supplier’s principal point of contact shall be its Managing Director.
8.10 The Customer acknowledges that the Supplier cannot guarantee an exact match in colour or texture between any proofs and any finished Deliverables, due to the differences in equipment, paper, inks and other conditions between the colour proofing and production runs. Proofs are for sizing and approximate colour content, not colour matching. On request, wet proofs may be provided at an additional charge.
8.11 Where the Services include logo design, the Customer is responsible for carrying out applicable full availability and infringement searches on a logo, device, mark or name proposed by the Supplier and obtaining legal and professional advice concerning the registrability of the proposed logo, device, mark or name and its potential to infringe third party Intellectual Property Rights.
8.12 It is the Customer’s responsibility to ensure clearance of any Third Party Products however sourced for use in the Services and to ensure compliance with any terms and conditions of use of such Third Party Products.
8.13 The Supplier shall not be required to print or in any way produce for the Customer anything which, in the Supplier’s reasonable opinion is or may be illegal, immoral, seditious, blasphemous, obscene, offensive, derogatory, defamatory or an infringement of any rights of a third party.
If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
8.14 The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
8.15 Where the Services include exhibition design or construction, the Customer shall:
8.15.1 be responsible for acquiring suitable premises and adequate space for the stand;
8.15.2 be responsible (at its own cost) for preparing (and maintaining, where applicable) the relevant premises for the supply of the Services and ensuring that the relevant premises meet the requirements of all applicable UK and overseas laws, before and during the supply of the Services at those premises, and informing the Supplier of all of the Customer’s obligations and actions under this condition 8.15.1;
8.15.3 comply with and inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at the relevant premises for the supply of the Services;
8.15.4 ensure that any equipment supplied by or on behalf of the Customer is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom and overseas standards or requirements;
8.15.5 be responsible, both during and at the end of the exhibition, for the products, materials, personal belongings and other items displayed on or left on the stand at any time and the Supplier accepts no liability for any loss or damage to such products, materials, personal belongings and other items displayed or left on the exhibition stand;
8.15.6 where the Customer requests the Supplier to return any of the Customer’s products, materials, personal belongings or other items to the Customer’s or a contractor’s premises, be responsible for taking out insurance to cover the transit of such products, materials, belongings or other items and acknowledges that if the Supplier agrees to undertake such transit, the Supplier shall have no liability for any loss or damage caused to such products, materials, belongings or items during such transit;
8.15.7 indemnify the Supplier for any loss or damage caused to any equipment, furniture and/or materials supplied to it by the Supplier.
8.16 Pursuant to condition 8.15, the Supplier reserves the right to refuse to perform the exhibition services if, in its reasonable and professional opinion, the relevant premises for the supply of the Services are hazardous or unsuitable for such Services to be provided or would pose a hazard to any person, including the Supplier’s employees, Sub-contractors, agents or consultants.
8.17 Where the Supplier is providing photography Services, the Customer shall pay for all props that are needed in the shoot. Any props or items provided to the Supplier by the Customer for use in the shoot will be kept by the Supplier for a maximum of one month, after which time they will be disposed of without liability to the Customer. If the Customer wishes the Supplier to arrange delivery of the props or items, it shall be responsible for the delivery costs. All items and props left at the Supplier’s are left at the Customer’s own risk. The Supplier accepts no liability for any loss or damage occurring to any such items or props.
Unless otherwise agreed between the parties, the Supplier shall be entitled to include a description of the Services and/or Deliverables provided to the Customer under the Contract within the Supplier’s portfolio of client work, on its website and in any other form of promotional material. The Supplier shall not disclose in the description any confidential information, information it considers commercially sensitive information or the identity of the Customer, unless with the prior written consent of the Customer. The Customer agrees that on a website designed for the Customer by the Supplier, there will be a discrete link to the Supplier’s website in the contacts/legal section of the website.
10.1 The Supplier warrants to the Customer that the Services will be performed with reasonable care and skill, subject to the exceptions in this condition 10 and the provisions of condition 11.
10.2 Any recommendations or advice provided by the Supplier (whether or not in connection with the Services and/or Deliverables) shall be given in good faith, but shall be guidance only and shall not constitute a representation. It is the Customer’s responsibility to assess the Supplier’s recommendations or advice in the context of the Customer’s business. The Customer accepts full responsibility for following such advice or implementing such recommendations made by the Supplier.
10.3 The Third Party Products, storage media and accompanying materials (if applicable) are provided “as is” without warranty of any kind, either express or implied, including but not limited to the implied warranties of satisfactory quality, fitness for a particular purpose, or non-infringement. The Supplier grants no rights or warranties with respect to the use of names, trademarks, logo types, copyrighted designs or works of art or architecture depicted in any image. The Customer must satisfy itself that all necessary rights, consents, or permissions as may be required are obtained, that its requirements will be met and that use will be uninterrupted or error free. The entire risk as to the quality, performance and use of the image(s) is solely with the Customer. The Customer understands that it should seek legal advice before using images on or in connection with any goods or services or for any other commercial purposes.
10.4 All other warranties and conditions as to the Services and/or Deliverables, whether express or implied, statutory or otherwise, including (without limitation) any fitness for a particular purpose, are hereby expressly excluded to the fullest extent permitted by law.
10.5 The Supplier shall not be liable for any breach of any warranty under condition 10.1 or for the breach of any condition herein unless the Customer gives written notice to the Supplier within 14 days of discovering (or 14 days of when it ought to have discovered) the alleged breach and the Customer has given the Supplier a reasonable opportunity to remedy the breach after receiving the notice. The Customer shall not use, alter or repair any Deliverables after giving such notice. The Supplier shall use all reasonable endeavours to remedy, free of charge to the Customer, any breach so notified in accordance with this condition.
10.6 The Supplier shall not, in any event or under any circumstances, be liable to remedy any breach arising from or caused by any modification (whether by way or alteration, deletion, addition or otherwise) made to any part of the Deliverables by persons other than the Supplier except where such alterations, deletions, additions or otherwise were carried out with the Supplier’s express written consent.
11 LIMITATION OF LIABILITY – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
11.1 This condition 11 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, and sub-contractors) to the Customer in respect of:
11.1.1 any breach of the Contract;
11.1.2 any use made by the Customer of the Services, the Deliverables or any part of them; and
11.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
11.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these Conditions limits or excludes the liability of the Supplier:
11.3.1 for death or personal injury resulting from negligence; or
11.3.2 for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier; or
11.3.3 for any liability incurred by the Customer as a result of any breach by the Supplier of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.
11.4 Subject to the provisions of this condition 11, the Supplier’s total liability in contract, tort (including negligence and breach of statutory duty) misrepresentation (other than fraudulent) or otherwise, arising out of or in connection with the Contract shall not exceed the sums paid by the Customer to the Supplier under the Contract in the 12 months preceding the breach or default.
11.5 Subject to conditions 11.2 and 11.3, the Supplier shall not be liable for:
11.5.1 loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of Deliverables, loss of contract, loss of use, loss or corruption of data or information, any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses;
11.5.2 any defect caused by fair wear and tear or wilful damage; and
11.5.3 any loss of or damage to the Documents or any property provided by the Customer to the Supplier to assist with the performance of the Contract.
11.6 The Supplier shall have no liability to the Customer for any loss, damage, costs, expenses or other claims for compensation arising from any instructions supplied by the Customer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Customer.
11.7 The provisions of this condition shall continue to apply notwithstanding the termination or expiry of the Contract for any reason whatsoever.
12.1 Without prejudice to any other rights or remedies, the Supplier may terminate the Contract without liability to the Customer by notice in writing if any of the following occurs:
12.1.1 the Customer fails to pay any amount due under the Contract on the due date for payment;
12.1.2 the Customer commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of being notified in writing of the breach;
12.1.3 a liquidator (other than for the purpose of solvent amalgamation or reconstruction), administrator, administrative receiver or receiver is appointed in respect of the whole or part of the Customer’s assets and/or undertaking or the Customer enters into an arrangement or composition with its creditors, or if the Customer becomes unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (as may be amended from time to time) (or any equivalent national legislation if the Customer is a foreign person, firm or company) or other circumstances arise which entitle the court of a creditor to appoint a receiver, administrative receiver or administrator or to make a winding up order in relation to the Customer; or
12.1.4 the Supplier discovers or reasonably suspects any fraud or attempted fraud or any other criminal offence in connection with the use of the Deliverables.
12.2 On termination of the Contract for any reason:
12.2.1 the Customer 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 may submit an invoice which shall be payable immediately on receipt;
12.2.2 the Supplier shall return to the Customer any Input Materials after receiving payment in full; and
12.2.3 the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination shall not be affected.
13.1 Neither party shall disclose to any third party any confidential information given to the other party in connection with the Contract without the express written permission of the other party.
13.2 Without prejudice to the generality of condition 13.1, the Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier, its employees, sub- contractors, agents or consultants and any other confidential information concerning the Supplier’s business or its products which the Customer may obtain.
14 DATA PROTECTION
The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to a credit reference agency and sub-contractors, and personal data will be processed by and on behalf of the Supplier and/or sub-contractor in connection with the Services.
15.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. 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.
15.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
16.1 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
16.2 If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.
17.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Contract.
17.2 The Supplier may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
17.3 Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
18 NO PARTNERSHIP OR AGENCY
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
19 RIGHTS OF THIRD PARTIES
No term of the contract shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a third party.
20.1 Any notice or other communication required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party and for the attention of the contact person, or as otherwise specified by the relevant party by notice in writing to the other party.
20.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address and for the contact person, 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.
20.3 This condition 20 shall not apply to the service of any in any proceedings or other documents in any legal action.
20.4 If agreed in advance between the parties, a notice or other communication required to be given under or in connection with the Contract may be validly sent by email.
21 GOVERNING LAW AND JURISDICTION
21.1 The Contract, 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 law of England and Wales.
21.2 The parties irrevocably agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter or formation (including non-contractual disputes or claims).