TERMS AND CONDITIONS

AGOG VIVID LIMITED TERMS & CONDITIONS

TERMS AND CONDITIONS OF BUSINESS

Agog Vivid Limited Unit 10, Green Farm, Fritwell, Oxfordshire OX27 7QU Company Number 09969542

THIS Agreement is dated       20[24]

is made BETWEEN:

(1)        AGOG VIVID LIMITED, a company incorporated in England and Wales with company number 09969542 and registered office at Unit 10, Green Farm, Fritwell, Oxfordshire OX27 7QU (“Designer”); and

(2)        [INSERT COMPANY NAME], a company incorporated in England and Wales with company number [INSERT COMPANY NUMBER]) and registered office at [INSERT ADDRESS] (“Client”).

In the absence of an inserted Party for “Client”, a “Client” shall mean any Party, company, individual or partnership who accepts a Quote in accordance with clause 2.1 of this Agreement.

Designer and the Client are collectively referred to as “the Parties” and each individually as a “Party“.

Background

(A)       The Designer creates and provides special effects, set designs and equipment, media effects and associated software services and agrees to provide the Services that are requested by the Client solely on these terms and conditions.

(B)       The Client has identified itself to the Designer as a business seeking to appoint them to provide those Services by accepting the offer of the Designer to carry out Services on these terms and conditions.

1.       Interpretation

The following definitions and rules of interpretation apply in this Agreement.

1.1       Definitions

Additional Services: means any further Services that go beyond the scope of an original Quote and our agreed by the Designer, which may well necessitate a further Quote and incur further Fees.

Affiliate: means in relation to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with that Party at the date of this Agreement.

Applicable Laws: means all applicable laws, statutes, regulations from time to time in force.

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 period from 9.00 am to 5.00 pm on any Business Day.

Confidential Information: means information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to (a) the Services; (b) the case, affairs and finances of the Client; and (c) the trade secrets including, without limitation, technical data, designs and know-how relating to the Designer which is created, developed, drafted or obtained in connection with the Services and Output; whether or not such information (if in anything other than oral form) is marked confidential.

Control: means, in relation to either Party, any person, firm, trust, partnership, corporation, company or other entity or combination thereof that directly or indirectly Controls such Party, is Controlled by such Party or is under the common Control with such Party (and for the purpose of this expression “Control” shall mean in relation to any Party, the beneficial ownership of fifty percent (50%) or more (including ownership by trusts with substantially the same beneficial interests) of the issued share capital of, or the legal power to direct, or otherwise control or influence the direction of the general management of the Party in question or its holding company or parent undertaking.

Commercially Reasonable Endeavours: means, with respect to the efforts to be expended by either Party with respect to any objective, such reasonable and diligent efforts as such Party would normally use to accomplish a similar objective under similar circumstances as expeditiously as possible, which in no event shall be less than the standard of care generally adhered to in the industry of such Party for the providing of such efforts, but for the avoidance of doubt, it shall not involve incurring material expense which would not reasonably be expected by the Party concerned at the Commencement Date and/or material risk which would not reasonably be expected by the Party concerned at the Commencement Date;

Client Equipment: means any equipment, including tools, systems, cabling or facilities, provided by the Client, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Services.

Client Materials: means all documents, information, items and materials in any form, whether owned by the Client or a third Party, which are provided by the Client to the Supplier in connection with the Services.

Data Protection Legislation: means all applicable data protection and privacy legislation in force from time to time, including the Data Protection Act 2018, the GDPR as transposed into the national legislation of the United Kingdom by operation of section 3 of the European Union (Withdrawal) Act 2018; and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426);

Designer’s Equipment: means any equipment, including tools, props, systems, cabling or facilities, provided by the Designer to the Client and used directly or indirectly in the supply of the Services.

Fees: means the sums payable for the Services and/or Additional Services, which shall be set out in the Quote or as notified to the Client from time to time.

Instructions: means all letters, documents, information, items and materials which are provided by the Client to the Designer requesting the Services.

Personal Data: means any personal data which the Designer processes in connection with this Agreement, in the capacity of a processor on behalf of the Client.

Project: means the aggregated Services required for a one project, the scope of which has been indicated in the Instructions and has been accepted by the Designer.

Intellectual Property Rights: means patents, utility models, rights to inventions, copyright and related rights, moral rights, trade 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 equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world, including the right to sue for and recover damages for past infringements.

Instructions: means the description or specification for Services including any related plans, drawings, data or other information or requirements of the Client relating to the Services as agreed;

Output: means all documents, products and materials developed by the Designer or its agents, contractors and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts) which are created during, and upon the completion of, the Project;

Services: means the services to be provided by the Supplier as set out in its estimate or other specification and other additional services as requested by the Client.

VAT: means Value Added Tax levied pursuant to the Value Added Tax Act 1994 and all secondary legislation and regulations pursuant thereto.

Quote: means a written indication of the scope and/or cost of Services, which contains a hyperlink to this Agreement

1.2   Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.

1.3   References to clauses, recitals, Appendices, Schedules and paragraphs are to clauses of, recitals, appendices and schedules to and paragraphs of this Agreement.

1.4   This Agreement shall be binding on, and enure to the benefit of, the parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any Party shall include that Party’s personal representatives, successors and permitted assigns.

1.5   A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made.

1.6   References to any person (which for the purposes of this Agreement shall include bodies corporate, unincorporated associations, partnerships, limited liability partnerships, governments, governmental agencies and departments, statutory bodies or other entities, in each case whether or not having a separate legal personality) shall include the person’s permitted successors and assigns;

1.7   General words shall not be given a restrictive interpretation by reason of their being preceded or followed by words indicating a particular class of acts, matters or things and each reference throughout this Agreement to “includes” or “including” shall be construed without limitation.

1.8   A reference to writing or written includes email, but not text messages, online messaging or other social media.

2.       Commencement and Application

2.1   This Agreement shall be deemed to be accepted by the Client if:

(a)        There is acceptance of, either in writing (including email) orally, or by their conduct, a Quote sent to them by the Designer (which may be sent electronically, by a PDF, by a hyperlink or by other media); or

(b)        There is an issuance of a purchase order by the Client which matches the Fees set out in the Quote (or accompanying email); or

(c)         No response is given in 5 Business Days from when the Quote was sent to the Client.

2.2       In the event that the Client has already provided any instructions to the Designer to perform Services and no Quote has been issued, this Agreement shall govern such Services, notwithstanding any contrary terms included in such Instructions.

2.3   This Agreement shall commence the date stated in this Agreement, failing which it shall commence upon the acceptance by the Client as described in clause 2.1 or (“Commencement Date”) and shall continue, unless terminated in accordance with this Agreement, when the Agreement shall come to an end.

2.4   Except as expressly set out in the Agreement, all other representations and warranties which might have effect between the Parties or be implied or incorporated into the Agreement and can be excluded under Appliable Law, whether by Applicable Law, statute (including the Supply of Goods and Services Act 1982), common law or otherwise are hereby excluded, including implied warranties of merchantability, suitability, or fitness for a particular use or purpose.

2.5   Both Parties acknowledge and accept that they are acting within the trade, business and profession relating to the Services.

3.       The Services

3.1           In consideration of the Fees payable by the Client to the Designer pursuant to this Agreement, Designer agrees to provide the Services to the Client for the duration of this Agreement and on the terms of this Agreement, and the Customer agrees to purchase the Services from the Designer for the duration of this Agreement and on the terms of this Agreement.

3.2           Any Additional Services provided by the Designer to the Client shall be separately agreed in writing between the Parties and subject to additional Fees, but subject thereto shall be provided by the Designer on the terms of this Agreement.

3.3           Any terms and conditions, confirmations or any other correspondence from the Client that are in addition to, inconsistent with, or in conflict with the terms of this Agreement shall have no force or effect.

4.       Designer’s Responsibilities

4.1   The Designer shall use all Commercially Reasonable Endeavours to perform the Services and deliver the Output to the Client, in accordance with this Agreement.

4.2   The Designer shall use all Commercially Reasonable Endeavours to meet any performance dates specified by the Client and agreed by the Designer, but any such dates shall be estimates only and time for performance by the Designer shall not be of the essence.

4.3   The Designer shall, upon request, provide information as to its Fees and the basis upon which its Fees may be calculated.

5.       Client’s obligations

5.1   The Client shall:

(a)     ensure that all of the Instructions are accurate, comprehensive and fully reflect the design brief and project objectives comprising the Instructions;

(b)     provide the Instructions to the Designer in sufficient time to enable the Designer to carry out the work before any set performance dates;

(c)     provide to the Designer in a timely manner all documents, information, items and materials in any form reasonably requested or required by the Designer in connection with the Services.

(d)     ensure that the Instructions and any further information are accurate and complete.

(e)     co-operate with the Designer in all matters relating to the Services.

(f)      As soon as the need arises, submit any proposed change or revision to the Instructions for the approval and Agreement of the Designer as set out at clause 6.

(g)     Comply with all Applicable Laws.

(h)     Will do, all things reasonably necessary, including executing any additional documents, to implement and give full effect to this Agreement.

(i)      Ensure Client Materials are accurate, in good order and complete.

(j)      Ensure Client Equipment is in good working condition, conforms to all relevant standards or requirements, suitable for all purposes for which it is used, and free from defects.

(k)     Obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Designer to provide the Services, including in relation to the installation of the Designer’s Equipment, the use of all Client Materials and the use of the Client’s Equipment, insofar as such licences, consents and legislation relate to the Client’s business, premises, staff and equipment, in all cases before the date on which the Services are to start.

(l)      Inform the Designer of all health and safety and security requirements that apply at any of the Client’s premises.

5.2   If the Designer’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, then, without prejudice to any other right or remedy it may have, the Designer shall gain an extension of time to perform its obligations under this Agreement equal to the delay caused by the Client and may suspend delivery of the Services and shall not be liable for such an extension or suspension as the case may be.

6.       Changes to the Services

6.1   If the Client wishes to make a change to the Instructions or the Services:

(a)     it shall notify the Designer and provide as much detail as the Designer reasonably requires of the proposed changes, including any revisions to any performance dates;

(b)     it shall obtain the Designer’s written Agreement to the proposed change; and

(c)     it shall provide the Designer with revised or further Instructions.

6.2   The Designer may adjust the Quote and/or add further Fees for the time it spends carrying out the agreed change at the rate of the Designer’s Fees or if Additional Services are required.

7.       Fees and payment

7.1   In consideration of the provision of the Services by the Designer, the Client shall pay the Fees to the Designer to a bank account nominated by the Designer to the Client from time to time, in full and in cleared funds, without set-off, deducting withholding or counterclaim.

7.2   The Designer shall be entitled to charge an hourly Fee rate for each hour or part thereof plus VAT or by a fixed Fee as notified to the Client before providing the Services and thereafter as communicated in the Quote.

7.3   The Parties agree that the Designer may unilaterally increase the Fees in line with the Retail Prices Index, or as a result of any event which outside the control of the Designer.

7.4   In relation to the Fees the Parties agree that:

(a)        the Designer’s daily fee rates for each individual person are calculated on the basis of an eight-hour day, worked during Business Hours; and

(b)        that the Designer shall be entitled to charge an overtime rate of 150% of the daily fee rate on a pro rata basis for any time on the Services outside Business Hours.

7.5   The Fees exclude the following which shall be payable by the Client following submission of an appropriate invoice:

(a)     the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the Designer in connection with the Services;

(b)     the cost to the Designer of any materials or services procured by the Designer from third parties for the provision of the Services as such items; and

(c)     the cost to the Designer of any licences, consents, materials or services procured by the Designer from third parties for the provision of the Services.

7.6   The Supplier shall invoice the Client for the Charges at the intervals notified to the Client. If no intervals are so specified, the Supplier shall invoice the Client at the end of each month for Services performed during that month.

7.7   Subject to clause 14.1(a), the Client shall pay each invoice submitted to it by the Designer within 15 days from the date of the invoice to a bank account nominated in writing by the Designer from time to time.

7.8   Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Designer any Fees due under this Agreement on the due date:

(a)     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 will accrue each day at 4% a year above the Bank of England’s base rate from time to time;

(b)     the Designer may, without liability, suspend all or part of the Services until payment has been made in full. The Client shall assume full liability for such suspension and indemnify the Designer in respect of all liabilities arising in connection with the suspension.

(c)     The Designer may revoke or suspend the Client’s licence to use Services for the purpose set out in the Instructions, by a notice in writing to the Client.

7.9           The parties agree that the Late Payment of Commercial Debts (Interests) Act 1998 shall apply to this Agreement and any overdue Fees.

7.10           All Fees payable to the Designer under this Agreement are exclusive of VAT (or equivalent tax) and the Client shall, in addition, pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice.

7.11      Time is of the essence for payment of Fees by the Client to the Designer.

7.12    Without prejudice to any other rights and remedies the Designer may have, the Designer shall have a general lien over all Output, Client’s Equipment delivered to it by the Client or created by the Supplier for the Client. Such a lien shall continue until all Fees whatsoever and howsoever due from the Client to the Designer have been paid in full.

7.13    Notwithstanding anything to the contrary, the Designer shall own outright all Designer Equipment.

8.          Intellectual property rights

8.1       Each Party shall retain all right, title, and interest in and to its pre-existing Intellectual Property Rights before the Commencement Date and any Intellectual Property Rights developed or acquired outside the Agreement or other than in relation to the Services (which shall include the Instructions and Client Materials) (“Background IPR”). Any Intellectual Property Rights in the Output or Services but excluding Background IPR (“Foreground IPR”) shall be the outright property of, and all arising title shall vest in, the Designer who shall retain ownership of all Foreground IPR.

8.2       This Agreement shall not convey any license or assignment or ownership rights unless expressly stated therein.

8.3       The Parties intend that all Foreground IPR will belong to the Designer. To the extent that Foreground IPR is capable of assignment, Client hereby and shall hereafter irrevocably assign to the Designer free from third Party claims absolutely with full title guarantee, all right, title, and interest in and to any and all Foreground IPR together with: all the rights, powers, privileges and immunities arising or accrued therefrom; the right to apply for, prosecute and obtain registered protection throughout the world with respect to the Foreground IPR (or any part of it) (together with the right to claim priority from any patent applications) with the intent that the grant of any such protection will be in the name of and will vest in Designer absolutely; and the right to institute and maintain proceedings for any infringement of the same, whether now, hereafter or which may have occurred before the date hereof including the right to claim and retain damages and other relief obtained as a result of such proceedings.

8.4       The Client shall not claim or demand any right, title or interest in any Foreground IPR other than granted by the Designer pursuant to this Agreement. Client shall use reasonable endeavours to prevent any infringement of the Designer’s Intellectual Property Rights and inform Designer as soon as possible upon becoming aware of any possible infringement of the Intellectual Property Rights belonging to the Designer and will cooperate with Designer to protect and defend Designer’s Intellectual Property Rights.

8.5       The Designer reserves the right to grant a licence to use the Foreground IPR to any other Party or parties.

8.6       Upon full and complete payment of all of the Fees, the Designer grants to the Client an exclusive, royalty-free, fully paid-up, non-transferable, revocable license to use the Intellectual Property Rights arising in the Output which are strictly necessary for the reasonable use of the Output. For the avoidance of doubt, the Designer shall retain all title in the Intellectual Property Rights in the Output and may, without liability, immediately revoke the license given in this clause 8.6 in the event of non-payment of Fees upon written notice to the Client.

8.7       The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 8.6 to any other Party.

8.8   The Client grants the Designer a fully paid-up, worldwide, perpetual, transferable, non-exclusive, royalty-free licence for the term of this Agreement in the Client’s Materials, Background IPR, Instructions for the sole purpose of providing the Services to the Client.

8.9   Notwithstanding anything to the contrary, the Parties agree that the Designer shall be entitled to put the Output on the Designer’s website, advertising, and social media at all times, including after the Agreement has terminated.

8.10        The Client:

(a)        warrants that the receipt and use of the Client Materials, Background IPR and Instructions in the performance of this Agreement by the Designer, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third Party; and

(b)        shall indemnify the Designer in full 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 costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Designer arising out of or in connection with any claim brought against the Designer, its agents, subcontractors or consultants for actual or alleged infringement of a third Party’s Intellectual Property Rights, arising out of, or in connection with, the receipt or use in the performance of this Agreement of the Client Materials, Background IPR and Instructions.

8.11        If either Party (the Indemnifying Party) is required to indemnify the other Party (the Indemnified Party) under this clause 8, the Indemnified Party shall:

(a)        notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at clause 8.9(b) (as applicable) (IPRs Claim);

(b)        allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld;

(c)         provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party’s costs so incurred; and

not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.

9.       Indemnity

9.1   The Client shall at its expense, defend, hold harmless and indemnify the Designer, from and against any and all actual damage, liability, losses, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers which result from or are in connection with any:

(a)        Act or omission in breach of this Agreement;

(b)        Failure to pay the Fees when due;

(c)        Infringement of Intellectual Property Rights;

(d)        Infringement of rights in respect of Confidential Information; or

(e)        Claim brought against the Designer by any third Party or regulatory authority attributable in whole or in part to the Client.

10.    Data protection

10.1        Each Party shall comply with its obligations under Data Protection Legislation with respect to the Personal Data it processes and each Party agrees that it shall not intentionally do or omit to do anything that would cause any other Party to breach Data Protection Legislation. Each Party shall take all steps reasonably requested by the other Party to assist in complying with such obligations.

10.2        Where a Party is acting as controller of any personal data (as defined in Data Protection Legislation) being processed under the Agreement, it shall process that data in accordance with its published privacy notices. Where a Party is acting as a processor, the parties agree to enter into a separate data processing Agreement in respect of that processing.

10.3        This clause 10 is in addition to, and does not relieve, remove or replace, a Party’s obligations or rights under Applicable Data Protection Laws

11.    Confidentiality

11.1           Each Party undertakes that it shall:

(a)        to keep all Confidential Information confidential;

(b)        not to use Confidential Information except for the purposes of performing its obligations under this Agreement (and in particular not to use Confidential Information to obtain a commercial, trading or any other advantage);

(c)        not, without the other’s prior written consent, to disclose Confidential Information to any other person except those of its employees, officers, representatives and advisers who need to know the Confidential Information for the purposes of performing its obligations under this Agreement; and

(d)        at the end of the Agreement to return all Confidential Information or, where return is not possible, to delete, destroy or render inaccessible such Confidential Information, save as for one confidential copy that may be retained in a Party’s confidential files solely for purposes of monitoring compliance with the terms hereof and, where applicable, for the purposes of regulatory compliance.

(e)        not at any time during this Agreement, and for a period of two years after termination or expiry of this Agreement, disclose to any person any Confidential Information except as permitted by clause 11.2.

11.2           Each Party may disclose the other Party’s Confidential Information:

(a)     to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising the Party’s rights or carrying out its obligations under or in connection with this Agreement;

(b)     as may be required by Applicable Law, a court of competent jurisdiction or any governmental or regulatory authority;

(c)     in connection with proceedings before a court of competent jurisdiction or under any court order or for the purpose of receiving legal advice; or

(d)     which has become independently available as being in the public domain;

but only to the extent that such a disclosure is not in breach of this Agreement, any confidentiality undertakings or obligations a Party may owe to a third Party, and for the purpose of that disclosure and 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.

11.3           Each Party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other Party’s confidential information comply with this clause 11.

 

12.       Limitation of Liability and Insurance

12.1    References to liability in this clause 12 include every kind of liability arising under or in connection with this Agreement including but not limited to, liability in contract, tort, negligence, any representation or statement arising under or in connection with this Agreement or by or on behalf of the Designer, breach of statutory duty, breach of the statutory warranties, negligence, misrepresentation, restitution or otherwise. Unless the Client notifies the Designer that it intends to make a claim in respect of an event within six months from the date of the completion of the Services the Designer shall have no liability for that event.

12.2    The Client shall procure and maintain in force for the duration of the Agreement and six (6) years thereafter, full and comprehensive insurance policies with reputable insurance companies against all risks that would normally be insured against by a prudent Party in connection with the risks associated with the Agreement.

12.3    Nothing in this this clause 12 shall limit the Client’s payment obligations under this Agreement.

12.4    Nothing in this Agreement limits any liability which cannot legally be limited, including liability for:

(a)        death or personal injury caused by negligence;

(b)        fraud or fraudulent misrepresentation; or

(c)        Any other liability which cannot be excluded under Applicable Law.

12.5    The Designer shall not be liable for any indirect, special, or consequential loss or damage, howsoever arising.

12.6    The Designer shall not be liable for any loss of profits, loss of reputation, loss of anticipated savings, loss, corruption or damage to data, information or software, wasted costs, loss of revenue or loss of business, loss of data, or loss of goodwill.

12.7    Subject to clause 12.4, the Designer’s total liability to the Client, shall not exceed the total Fees payable to the Designer in any one calendar year in relation to the Services. A claim against the Designer for liability under this clause 12.7 shall include multiple claims aggregated from a single event or circumstance.

12.8    The Designer shall in all circumstances have no liability:

(a)        resulting from or in connection with the Client’s breach of this Agreement;

(b)        where the Designer follows any Instruction, process or specification provided by the Client; or

(c)       resulting from or in connection with any act, omission or delay by the Client.

13.    Termination

13.1        Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving 3 calendar days written notice to the other Party if:

(a)     the other Party commits a material breach of any term of this Agreement (including non-payment of any invoices) and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so.

(b)     the other Party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement.

(c)     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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;

(d)     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 any of its creditors.

(e)        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);

(f)      an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other Party (being a company, partnership or limited liability partnership);

(g)     the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

(h)     the other Party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.

(i)      there is a change of Control of one of the Parties and the other does not agree to the novation of this Agreement.

13.2        Failure to make payment of any Fees or invoice when due which is not remedied within eight (8) days of Designer requesting that the Client pay said invoice or Fees shall result in the immediate maturity of all other invoices for Services rendered and Designer shall be entitled to terminate this Agreement immediately by written notice.

13.3        If, in the sole opinion of Designer, the Client is associated with unethical behaviour and association with the Client would bring the reputation of Designer into disrepute, Designer may terminate this Agreement immediately by written notice.

14.       Obligations on Termination and Survival

14.1    On termination or expiry of this Agreement:

(a)        the Client shall immediately pay to the Designer all of the Designer’s outstanding unpaid Fees, invoices and interest; and, in respect of the Services supplied but for which no invoice has been submitted, the Designer may submit an invoice, which shall be payable immediately on receipt.

14.2        On clause 1 (Interpretation),  clause  8 (Intellectual property rights), clause 9 ( Indemnity), clause 11 (Confidentiality), clause 12  (Limitation of liability), clause 13 (Termination), Clause 21 (TUPE), clause 18 (Waiver), clause 19 (Severance), clause 22 (Conflict), clause 26 (Dispute resolution procedure), clause 28 (Rights and Remedies), clause 29 (Governing law and jurisdiction).

14.3        On termination or expiry of this Agreement each Party shall at the request of the other Party, within ten (10) Business Days of such request and at the requesting Party’s cost, return to the requesting Party or otherwise destroy (at such Party’s election) all documents and Confidential Information, together with all know-how and/or information of a technical nature which it has in its possession and which were provided to it by the requesting Party, together with all copies thereof (except one (1), which may be retained for the purposes of complying with applicable regulatory obligations, or to perform and enforce its surviving obligations under this Agreement).

14.4        With effect from termination or expiry of this Agreement neither Party shall make any use for any purpose whatsoever of any relevant Intellectual Property or Confidential Information which is the property of the other Party and shall ensure that copies thereof are dealt with in accordance with the surviving terms of this Agreement.

14.5        On termination or expiry of this Agreement, Designer shall cease to provide the Services to the Client, and will issue the Client with an invoice for all outstanding Fees in respect of the period up to the date of termination. Such invoice shall be paid in accordance with the provisions of clause 7.

14.6        If Designer has any work in progress as at the date of termination, Designer shall, at its discretion, be entitled to complete such work in progress, and the Client shall pay the relevant Fees for such work in progress in accordance with clause 7.

14.7             Any termination or the expiry of this Agreement will not affect the coming into force or the continuance in force of any provision which is intended to come into or continue in force on or after such termination or expiry.

14.8        Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages for any breach that existed at or before the date of termination.

15.       Force majeure

15.1    Force Majeure Event means any circumstance not within a Party’s reasonable control including, without limitation:

(a)        acts of God, flood, drought, earthquake or other natural disaster;

(b)        epidemic or pandemic, including Coronavirus;

(c)        terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;

(d)        interruption or failure of a utility service;

(e)        nuclear, chemical or biological contamination;

(f)         any law or any action taken by a government or public authority which prevents or impedes the Designer from completing the Services; and

(g)        fire, explosion, major incident or accident.

15.2    If a Party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

15.3    The Affected Party shall:

(a)        as soon as reasonably practicable after the start of the Force Majeure Event but no later than 14 days from its start, notify the other Party in writing of the Force Majeure Event, the date on which it started and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement: and

(b)        use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

15.4    If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 12 consecutive weeks the Party not affected by the Force Majeure Event may terminate this Agreement by giving 4 weeks’ written notice to the Affected Party.

16.       Assignment and other dealings

The Designer may assign this Agreement upon terms that preserve the accrued and future rights and obligations of the Client. The Client shall not assign the Agreement without the consent of the Designer.

17.       Variation

No variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).

18.           Waiver

A waiver of any right or remedy under this Agreement 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 shall not constitute a waiver of that or any other right or remedy.

19.       Severance

19.1              Each provision or part-provision of this Agreement is severable and distinct from the others.

19.2        If any provision or part-provision of this Agreement is or becomes to any extent invalid, illegal or unenforceable under any enactment or rule of law in any jurisdiction, but would be valid, legal and enforceable if the provision or part-provision were modified, that provision or part-provision will apply with whatever modification is necessary to make it valid, legal and enforceable. If such modification is not possible, it will to that extent be severed from the remainder of this Agreement and in either case neither the validity, legality and enforceability of the remaining provisions will be affected.

20.           Entire Agreement

 

20.1        This Agreement is binding, is the entire Agreement, and shall apply to govern the Agreement and supersedes and extinguishes all previous Agreements, arrangements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter, save for any special terms or conditions contained in the Quote or accompanying email or letter sent by the Designer.

20.2       Each Party agrees that it does not rely on and will have no remedies nor claims in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.

20.3           Each Party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.

21.    Conflict and Precedence

In the event of any conflict, discrepancy or inconsistency between this Agreement and the Quote sent by the Designer, the Quote shall take precedence. In the event of any conflict, discrepancy or inconsistency between this Agreement and any other document or form, the Agreement shall prevail.

22.    No partnership or agency

Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.

23.    Third Party rights

This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

24.       Counterparts

24.1    This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.

24.2    No counterpart shall be effective until each Party has executed at least one counterpart.

25.       Dispute resolution procedure

If a dispute arises out of or in connection with this Agreement (“Dispute”) then either Party may serve a notice and both parties shall then meet (remotely or in person) within 14 days to resolve the Dispute by alternative dispute resolution.

26.       Notices

26.1        Any notice to be given under this Agreement shall be:

(a)        in writing in the English language;

(b)        signed by or on behalf of the Party giving it; and

(c)        addressed to the other Party at its registered office or principal place of business or such other address as may have been notified or can reasonably discover for these purposes.

26.2        A notice shall be deemed to have been received:

(a)        if delivered by hand, on signature of a delivery receipt;

(b)        if sent by pre-paid first class post, recorded delivery or special delivery (or equivalent service) to an address in the United Kingdom, at 9.00am on the second (2^nd) Business Day after posting;

(c)        if sent by pre-paid airmail to an address outside the country from which it is sent at 9.00 am on the fifth (5^th) Business Day after posting; or

(d)        if sent by reputable international overnight courier to an address outside the country from which it is sent, on signature of a delivery receipt,

provided that a notice delivered or posted, as appropriate, after 5.00pm on any Business Day or on a non-Business Day shall be deemed delivered or posted, as appropriate, at 9.00am on the next Business Day.

26.3        A communication by email shall be deemed served if sent to the email address which is notified by each Party to the other from time to time for this purpose, at the time the email is delivered, which shall be taken to be when the email is first accessible by the addressee.

27.       Rights and Remedies

27.1        Unless expressly stated in relation to any clause of this Agreement, the rights and remedies given to the parties in this Agreement are:

(a)        in addition to;

(b)        without prejudice to; and

(c)        not exclusive of,

any and all other rights or remedies given to them whether by this Agreement, by law or otherwise and all such rights and remedies are cumulative.

28.       Governing law and jurisdiction

25.1   This Agreement and any dispute or claim (shall be governed by and construed in accordance with the law of England and Wales.

25.2   Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation.