TERMS AND CONDITIONS
1.1 - Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services by the Supplier, as set out in the Order Acknowledgement - Contract Details
Conditions: these terms and conditions.
Contract: the contract between the Customer and the Supplier for the supply of the Services in accordance with the Order Acknowledgement - Contract Details, these Conditions and any Schedules.
Customer Materials: all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier.
Deliverables: all documents, products and materials developed or supplied by the Supplier or its agents, subcontractors and personnel as part of or in relation to the Services in any form including any Key Deliverables set out in the Order Acknowledgement - Contract Details.
IPR: patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) 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.
Limit: the sum of £250,000.
Order: the Customer's order for the supply of Services, or the Customer's written acceptance of the Supplier’s tender/quotation, as the case may be.
Services: the services, including without limitation any Deliverables, to be provided by the Supplier pursuant to the Contract, as described in the Order Acknowledgement - Contract Details.
Services Start Date: the day on which the Supplier is to start provision of the Services, as set out in the Order Acknowledgement - Contract Details.
Supplier: Different Resonance, C4DI, 31-38 Queen Street, Hull; HU1 1UU
Supplier’s IPRs: all Intellectual Property Rights subsisting in the Deliverables excluding any Customer Materials incorporated in them.
1.2 - Interpretation:
(a) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
(b) 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.
(c) A reference to writing or written includes email.
2. Commencement and term
2.1 - Any Order constitutes an offer by the Customer to purchase the Services in accordance with these Conditions.
2.2 - The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order or when the Supplier signs a copy of the Order Acknowledgement - Contract Details, whichever is earlier, at which point and on which date the Contract shall come into existence and shall continue until terminated in accordance with these Conditions.
2.3 - Any samples, drawings, descriptive matter or advertising issued by the Supplier and any illustrations or descriptions of the Services 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.
2.4 - These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 - Any tender or quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 3 calendar months from its date of issue.
3. Supply of services
3.1 - The Supplier shall supply the Services to the Customer from the Services Start Date in accordance with the Contract.
3.2 - In supplying the Services, The Supplier shall:
(a) perform the Services with reasonable care and skill;
(b) use reasonable endeavours to perform the Services in accordance with the service description set out in the Order Acknowledgement - Contract Details;
(c) ensure that the Deliverables, and all goods, materials, standards and techniques used in providing the Services are of satisfactory quality and are fit for purpose;
(d) observe all reasonable health and safety rules and regulations and security requirements that apply at any of the Customer's premises and have been communicated to The Supplier, provided that the Supplier shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
4. Customer's obligations
4.1 - The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services;
(b) provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer's premises, office accommodation, data and other facilities as required by the Supplier or any of them;
(c) provide, in a timely manner, such information as the Supplier may require, and ensure that it is accurate and complete in all material respects.
4.2 - 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, subcontractors, consultants or employees, the Supplier shall:
(a) not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
(b) be entitled to payment of the Charges despite any such prevention or delay; and
(c) be entitled to recover any additional costs, charges or losses the Supplier sustains or incurs that arise directly or indirectly from such prevention or delay.
5. Intellectual property
5.1 - The Supplier and its licensors shall retain ownership of all the Supplier IPR’s. The Customer and its licensors shall retain ownership of all IPR in the Customer Materials. The Customer shall indemnify the Supplier in full against any sums awarded by a court against the Supplier arising of or in connection with any claim brought against the Supplier for infringement of a third party's rights (including any IPR) arising out of, or in connection with, the receipt or use of the Customer Materials by the Supplier.
6. Charges and payment
6.1 - In consideration for the provision of the Services, the Customer shall pay the Supplier the Charges in accordance with this clause 6.
6.2 - All amounts payable by the Customer exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
6.3 - The Supplier shall submit invoices for the Charges plus VAT if applicable to the Customer monthly in arrear, on or after the last day of each month, or as set out in the Special Terms in the Order Acknowledgement - Contract Details.
6.4 - The Customer shall pay each invoice due and submitted to it by the Supplier, within 30 days of receipt, to a bank account nominated in writing by the Supplier.
6.5 - If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier's remedies under clause 8 (Termination):
(a) the Customer 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 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%;
(b) the Supplier may suspend all Services until payment has been made in full; and
(c) the Customer shall pay all of the Supplier costs and expenses (including all legal and court costs) on a full indemnity basis incurred by the Supplier in enforcing this Contract and/or obtaining payment of any sums due and owing to the Supplier by the Customer.
6.6 - All amounts due under the Contract from the Customer to the Supplier 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).
7. Limitation of liability
7.1 - The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding the Limit per claim. The limits and exclusions in this clause reflect the insurance cover The Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
7.2 - The restrictions on liability in this clause 7 apply to every liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
7.3 - Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
7.4 - Subject to clause 7.3, the Supplier's total liability to the Customer in respect of all breaches of duty occurring within any contract year shall not exceed the cap.
7.5 - In clause 7.4:
(a) cap. The cap is 50% of the total charges in the contract year in which the breaches occurred.;
(b) contract year. A contract year means a 12-month period commencing with the date of the Contract or any anniversary of it; and
(c) total charges. The total charges means all sums paid by the Customer and all sums payable under the Contract in respect of goods and services actually supplied by The Supplier, whether or not invoiced to the Customer.
7.6 - Subject to clause 7.3, the following types of loss are wholly excluded: loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of or damage to goodwill and indirect or consequential loss.
7.7 - The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
7.8 - Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
7.9 - In the event that the Customer is a consumer then the Customer’s statutory rights are not affected by the terms of this Contract.
8.1 - Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 21 days after being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.2 - 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 Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
8.3 - On termination of the Contract for whatever reason:
(a) 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;
(b) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect; and
(c) termination of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
9.1 - The Supplier shall not 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.
9.2 - The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the Supplier's prior written consent.
9.3 - Neither party shall use any other party's confidential information for any purpose other than to perform its obligations under the Contract.
9.4 - 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.
9.5 - The Customer 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. The Customer agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
9.6 - No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
9.7 - 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.
9.8 - 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.
9.9 - If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 9.9 shall not affect the validity and enforceability of the rest of the Contract.
9.10 - 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.
9.11 - 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.
9.12 - 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.
9.13 - Notices.
(a) Any notice 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
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(ii) 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 at the time recorded by the delivery service whichever is earlier;
(c) This clause 9.13 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
(d)A notice given under the Contract is not valid if sent by email.