1.1. In these Conditions the following definitions apply:
means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;
means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force whether local or national;
means augmented reality;
means the Bribery Act 2010 and all Applicable Laws in connection with bribery or anti-corruption;
means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in England;
means the Supplier’s terms and conditions of supply set out in this document;
means any commercial, financial or technical information, information relating to the Services, plans, know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;
means the agreement between the Supplier and the Customer for the supply and purchase of Services incorporating these Conditions and the Order and including all their respective schedules, attachments, annexures and statements of work;
means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company and Controls, Controlled and under common Control shall be construed accordingly;
shall have the meaning given to it in applicable Data Protection Laws from time to time;
means the named party in the Contract which has agreed to purchase the Services from the Supplier and whose details are set out in the Order;
Data Protection Laws
means, as binding on either party or the Services:
the Data Protection Act 2018;
any laws which implement any such laws; and
any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
Data Protection Supervisory Authority
means any regulator, authority or body responsible for administering Data Protection Laws;
shall have the meaning given to it in applicable Data Protection Laws from time to time;
means any descriptions, instructions, manuals, literature, technical details or other related materials supplied in connection with the Services;
means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including those involving the Supplier’s or its suppliers’ workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;
means the General Data Protection Regulation, Regulation (EU) 2016/679;
Intellectual Property Rights
means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in software, rights in Confidential Information, rights to invention, rights to sue for passing off, domain names and all other intellectual property rights and similar rights and, in each case:
whether registered or not;
including any applications to protect or register such rights;
including all renewals and extensions of such rights or applications;
whether vested, contingent or future;
to which the relevant party is or may be entitled, and
in whichever part of the world existing;
shall have the meaning given to it in applicable Data Protection Laws from time to time;
means the address or addresses for performance of the Services as set out in the Order;
the content supplied by the Customer to the Supplier, its sub-contractors or agents for incorporation into any web-site, video, AR or other deliverable.
Modern Slavery Policy
means the Supplier’s anti-slavery and human trafficking policy in force and notified to the Customer from time to time;
has the meaning given in clause 10.2.1;
means the order for the Services from the Supplier placed by the Customer in substantially the same form as set out in the Supplier’s order form;
shall have the meaning given to it in applicable Data Protection Laws from time to time;
Personal Data Breach
shall have the meaning given to it in applicable Data Protection Laws from time to time;
has the meaning set out in clause 3.1;
has the meaning given to it in applicable Data Protection Laws from time to time (and related expressions, including process, processing, processed, and processes shall be construed accordingly);
shall have the meaning given to it in applicable Data Protection Laws from time to time;
means Personal Data received from or on behalf of the Customer in connection with the performance of the Supplier’s obligations under the Contract;
means the Services set out in the Order and to be performed by the Supplier for the Customer in accordance with the Contract;
means the description or Documentation provided for the Services set out or referred to in the Contract;
means any agent, sub-contractor or other third party (excluding its employees) engaged by the Supplier for carrying out any processing activities on behalf of the Customer in respect of the Protected Data;
means Media and Digital Ltd, a company incorporated and registered in England with company number 04000770, whose registered address is at 146 London Road, Stockton Heath, Warrington, Cheshire, United Kingdom, WA4 6LE;
means all employees, officers, staff, other workers, agents and consultants of the Supplier, its Affiliates and any of their sub-contractors who are engaged in the performance of the Services from time to time;
Third Party Software
means any software supplied by a third party as part of the Services whether in connection with an AR application, video, website or other media platform; and
means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Services.
1.2. In these Conditions, unless the context requires otherwise:
1.2.1. a reference to the Contract includes these Conditions, the Order, and their respective schedules, appendices and annexes (if any);
1.2.2. any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;
1.2.3. a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
1.2.4. a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.5. a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
1.2.6. a reference to a gender includes each other gender;
1.2.7. words in the singular include the plural and vice versa;
1.2.8. any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.2.9. a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form;
1.2.10. a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.
2. Application of these conditions
2.1. These Conditions apply to and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
2.2. No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that the Supplier otherwise agrees in writing.
2.3. No variation of these Conditions or to an Order or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of the Supplier and the Customer respectively.
2.4. Each Order by the Customer to the Supplier shall be an offer to purchase Services subject to the Contract including these Conditions.
2.5. If the Supplier is unable to accept an Order, it shall notify the Customer as soon as reasonably practicable.
2.6. The offer constituted by an Order shall remain in effect and be capable of being accepted by the Supplier for 5 Business Days from the date on which the Customer submitted the Order, after which time it shall automatically lapse and be withdrawn.
2.7. The Supplier may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Services shall arise, until the earlier of:
2.7.1. the Supplier’s written acceptance of the Order; or
2.7.2. the Supplier performing the Services or notifying the Customer that they are ready to be performed (as the case may be).
2.8. Rejection by the Supplier of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
2.9. The Supplier may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply Services and are incapable of being accepted by the Customer.
2.10. Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Contract.
3.1. The price for the Services shall be as set out in the Order or, where no such provision is set out, shall be calculated in accordance with the Supplier’s scale of charges in force from time to time or as advised by the Supplier from time to time before the date the Order is placed (the Price).
3.2. The Prices are exclusive of VAT (or equivalent sales tax).
3.3. The Customer shall pay any applicable VAT to the Supplier on receipt of a valid VAT invoice.
3.4. The Supplier may increase the Prices at any time by giving the Customer not less than 15 Business Days’ notice in writing provided that the increase does not exceed 5% of the Prices in effect immediately prior to the increase.
3.5. Notwithstanding clause 3.4, the Supplier may increase the Prices with immediate effect by written notice to the Customer where there is an increase in the direct cost to the Supplier of supplying the relevant Services which exceeds 10% and which is due to any factor beyond the control of the Supplier.
4.1. The Supplier shall invoice the Customer for the Services, partially or in full, at any time following acceptance of the Order.
4.2. The Customer shall pay all invoices:
4.2.1. in full without deduction or set-off, in cleared funds within 30 days of the date of each invoice; and
4.2.2. to the bank account nominated by the Supplier.
4.3. Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:
4.3.1. the Supplier may, without limiting its other rights, charge interest on such sums at 8% a year; and
4.3.2. interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
5. Credit limit
The Supplier may set and vary credit limits from time to time and withhold all further supplies if the Customer exceeds such credit limit.
6.1. The Services shall be performed by the Supplier or its subcontractors at the Location on the date(s) specified in the Order.
6.2. The Services shall be deemed performed on completion of the performance of the Services as specified in the Order.
6.3. The Supplier may perform the Services in instalments. Any delay or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6.4. Each performance of the Services shall be accompanied by a performance note stating:
6.4.1. the date of the Order;
6.4.2. the relevant Customer and Supplier details;
6.4.3. the category, type and quantity of Services performed; and
6.4.4. any special instructions.
6.5. Time of performance of the Services is not of the essence. The Supplier shall use its reasonable endeavours to meet estimated dates for performance, but any such dates are indicative only.
6.6. Unless the parties agree otherwise, packaging material is to be promptly returned to the Supplier at the Customer’s expense.
6.7. The Supplier shall not be liable for any delay in or failure of performance caused by:
6.7.1. the Customer’s failure to make the Location available;
6.7.2. the Customer’s failure to prepare the Location as required for the performance of the Services;
6.7.3. the Customer’s failure to provide the Supplier with adequate instructions for performance or otherwise relating to the Services;
6.7.4. Force Majeure.
6.8. The Customer shall ensure that the Location and any members of the Customer’s staff, employees, pupils or other individuals that participate in the production or performance of the Services comply with social distancing and other governmental or regulatory laws and guidelines connected directly or indirectly with the covid-19 pandemic.
7. Third Party Software and Hosting
7.1. Any Third Party Software shall be supplied in accordance with the relevant licensor's standard terms. The licence fees for such Third Party Software are included in the Price payable pursuant to clause 3.
7.2. Should any Third Party Software cease to be commercially available then the Supplier will use all reasonable endeavours to source and implement an alternative software platform. The Supplier’s endeavours shall extend to sourcing an alternative commercially available software product but shall not extend to commissioning the production of new source code.
7.3. The Customer acknowledges that the continuing availability of Third Party Software is not within the Supplier’s control and therefore the Supplier cannot be held responsible or liable for any re-print costs associated with engaging any new suppliers of Third Party Software, provided that the Supplier shall use its reasonable endeavours to mitigate any such additional costs.
7.4. This clause 7 shall survive expiry or termination of the Contract.
7.5. The Customer acknowledges that the Supplier has no control over any content placed on a website by the Customer or visitors to any such site and does not purport to monitor the content of any website. If the Supplier is providing hosting services, the Supplier reserves the right to remove content from any website where it reasonably suspects such content is Inappropriate Content. The Supplier shall notify the Customer promptly if it becomes aware of any allegation that any content on any website may be Inappropriate Content.
8.1. The Supplier warrants that, for a period of three months from performance, the Services shall:
8.1.1. conform in all material respects to their description and the Specification;
8.1.2. be free from material defects;
8.1.3. be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II s 13; and
8.1.4. in the case of media on which the results of the Services are supplied, be free from defects in material and workmanship and of satisfactory quality within the meaning of the Sale of Goods Act 1979.
8.2. The Customer warrants that:
8.2.1. it has provided the Supplier with all relevant, full and accurate information as to the Customer’s business and needs;
8.2.2. it has obtained the written consent to use any images (including video images) of any person (including parental consent for minors) or premises that form part of the Services (including, but not limited to, the promotional purposes of the Supplier);
8.2.3. whilst any of the Supplier’s staff, personnel, agents or subcontractors are at the Location or other place where the Services are being performed, the Customer will comply with all safeguarding rules and regulations or good practice and ensure that the Supplier’s staff, personnel, agents or subcontractors are at all times accompanying by an appropriately qualified member of the Customer’s staff;
8.2.4. the Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights). (Inappropriate Content).
8.3As the Customer’s sole and exclusive remedy, the Supplier shall, at its option, remedy, re-perform or refund the Services that do not comply with clause 8.1, provided that:
8.3.1. the Customer serves a written notice on the Supplier not later than five Business Days from performance in the case of defects discoverable by a physical inspection, or within a reasonable period of time from performance in the case of latent defects; and
8.3.2. such notice specifies that some or all of the Services do not comply with clause 8.1 and identifies in sufficient detail the nature and extent of the defects; and
8.3.3. the Customer gives the Supplier a reasonable opportunity to examine the claim of the defective Services.
8.4. The provisions of these Conditions shall apply to any Services that are remedied or re-performed with effect from performance of the remedied or re-performed Services.
8.5. Except as set out in this clause 8:
8.5.1. the Supplier gives no warranties and makes no representations in relation to the Services; and
8.5.2. shall have no liability for their failure to comply with the warranty in clause 8.1,
8.5.3. and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
9.1. For the purposes of this clause 9 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.
9.2. Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable endeavours to ensure that:
9.2.1. all of that party’s personnel;
9.2.2. all others associated with that party; and
9.2.3. all of that party’s sub-contractors;
involved in performing the Contract so comply.
9.3. Without limitation to clause 9.2, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
9.4. The Customer shall immediately notify the Supplier as soon as it becomes aware of a breach or possible breach by the Customer of any of the requirements in this clause 9.
9.5. Any breach of this clause 9 by the Customer shall be deemed a material breach of the Contract that is not remediable and shall entitle the Supplier to immediately terminate the Contract by notice under clause 16.1.1.
10.1. The Supplier shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy.
10.2. The Customer confirms and agrees that:
10.2.1. neither the Customer nor any of its officers, employees, agents or subcontractors has:
(a)committed an offence under the Modern Slavery Act 2015 (an MSA Offence); or
(b)been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or
(c)is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;
10.2.2. it shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy;
10.2.3. it has implemented due diligence procedures to ensure compliance with the Modern Slavery Act 2015 and the Modern Slavery Policy in its business and supply chain, and those of its officers, employees, agents or subcontractors, which will be made available to the Supplier on request at any time throughout the Contract.
10.3. The Customer shall notify the Supplier immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of the Customer’s obligations under clause 10.2. Such notice to set out full details of the circumstances concerning the breach or potential breach of the Customer’s obligations.
10.4. Any breach of clause 10.2 by the Customer shall be deemed a material breach of the Contract and shall entitle the Supplier to terminate the Contract with immediate effect.
11. Indemnity and insurance
11.1. The Customer shall indemnify, and keep indemnified, the Supplier from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Supplier as a result of or in connection with the Customer’s breach of any of the Customer’s obligations under the Contract.
11.2. The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom to cover its obligations under these Conditions. On request, the Customer shall supply, so far as is reasonable, evidence of the maintenance of the insurance and all of its terms from time to time applicable. The Customer shall on request assign to the Supplier the benefit of such insurance.
12. Limitation of liability
12.1. The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 12.
12.2. Subject to clauses 12.5 and 12.6, the Supplier’s total liability shall not exceed the sum of £5,000
12.3. Subject to clauses 12.5 and 12.6, the Supplier shall not be liable for consequential, indirect or special losses.
12.4. Subject to clauses 12.5 and 12.6, the Supplier shall not be liable for any of the following (whether direct or indirect):
12.4.1. loss of profit;
12.4.2. loss or corruption of data;
12.4.3. loss of use;
12.4.4. loss of production;
12.4.5. loss of contract;
12.4.6. loss of opportunity;
12.4.7. loss of savings, discount or rebate (whether actual or anticipated);
12.4.8. harm to reputation or loss of goodwill.
12.5. The limitations of liability set out in clauses 12.2 to 12.4 shall not apply in respect of any indemnities given by the Customer under the Contract.
12.6. Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
12.6.1. death or personal injury caused by negligence;
12.6.2. fraud or fraudulent misrepresentation;
12.6.3. any other losses which cannot be excluded or limited by Applicable Law;
12.6.4. any losses caused by wilful misconduct.
13. Confidentiality and announcements
13.1. The Customer shall keep confidential all Confidential Information of the Supplier and of its Affiliatesand shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
13.1.1. any information which was in the public domain at the date of the Contract;
13.1.2. any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
13.1.3. any information which is independently developed by the Customer without using information supplied by the Supplier or by any Affiliate of the Supplier; or
13.1.4. any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract
except that the provisions of clauses 13.1.1 to 13.1.3 shall not apply to information to which clause 13.4 relates.
13.2. This clause shall remain in force for a period of five years from the date of the Contract and, if longer, three years after termination of the Contract.
13.3. The Customer shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.
13.4. To the extent any Confidential Information is Protected Data (as defined in clause 14) such Confidential Information may be disclosed or used only to the extent such disclosure or use is in compliance with and does not conflict with any of the provisions of clause 14.1.
14. Processing of personal data
14.1. The parties agree that the Customer is a Controller and that the Supplier is a Processor for the purposes of processing Protected Data pursuant to the Contract. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Customer shall ensure all instructions given by it to the Supplier in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with Data Protection Laws. Nothing in the Contract relieves the Customer of any responsibilities or liabilities under any Data Protection Laws.
14.2. The Supplier shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of the Contract.
14.3. The Customer shall indemnify and keep indemnified the Supplier against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a Data Protection Supervisory Authority) arising out of or in connection with any breach by the Customer of its obligations under this clause 14.
14.4. The Supplier shall:
14.4.1. only process (and shall ensure Supplier Personnel only process) the Protected Data in accordance with the Contract (including when making any transfer to which clause 14.9 relates), except to the extent:
(a)that alternative processing instructions are agreed between the parties in writing; or
(b)otherwise required by applicable law (and shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and
14.4.2. without prejudice to clause 14.1, if the Supplier believes that any instruction received by it from the Customer is likely to infringe the Data Protection Laws it shall promptly inform the Customer and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.
14.5. Taking into account the state of technical development and the nature of processing, the Supplier shall implement and maintain the technical and organisational measures set out in clause 14.6 to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.
14.6. The Supplier shall implement and maintain the following technical and organisational security measures to protect the Protected Data:
14.6.1. in accordance with the Data Protection Laws, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of the Protected Data to be carried out under or in connection with the Contract, as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Protected Data transmitted, stored or otherwise processed, the Supplier shall implement appropriate technical and organisational security measures appropriate to the risk, including as appropriate those matters mentioned in Articles 32(1)(a) to 32(1)(d) (inclusive) of the GDPR.
14.7. The Supplier shall:
14.7.1. not permit any processing of Protected Data by any agent, subcontractor or other third party (except its or its Sub-Processors’ own employees in the course of their employment that are subject to an enforceable obligation of confidence with regards to the Protected Data) without the priorspecific written authorisation of the Customer;
14.7.2. prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this clause 14 (including those relating to sufficient guarantees to implement appropriate technical and organisational measures) that is enforceable by the Supplier and ensure each such Sub-Processor complies with all such obligations;
14.7.3. remain fully liable to the Customer under the Contract for all the acts and omissions of each Sub-Processor as if they were its own; and
14.7.4. ensure that all persons authorised by the Supplier or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.
14.8. The Customer authorises the appointment of the Sub-Processors listed in the schedule.
14.9. The Supplier shall (at the Customer’s cost):
14.9.1. assist the Customer in ensuring compliance with the Customer’s obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to the Supplier; and
14.9.2. taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.
14.10. The Supplier shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to countries outside the United Kingdom or to any International Organisation without the prior written authorisation of the Customer.
14.11. The Supplier shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate the Supplier’s compliance with the obligations placed on it under this clause 14 and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose (subject to a maximum of one audit request in any 12 month period under this clause 14.11).
14.12. The Supplier shall notify the Customer without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Protected Data.
14.13. On the end of the provision of the Services relating to the processing of Protected Data, at the Customer’s cost and the Customer’s option, the Supplier shall either return all of the Protected Data to the Customer or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires the Supplier to store such Protected Data. This clause 14 shall survive termination or expiry of the Contract.
15. Force majeure
Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such the event causes a delay or failure in performance and when it ceases to do so. If the Force Majeure event continues for a continuous period of more than 60 days, the party not affected may terminate the Contract by written notice to the other party.
16.1. The Supplier may terminate the Contract or any other contract which it has with the Customer at any time by giving notice in writing to the Customer if:
16.1.1. the Customer commits a material breach of Contract and such breach is not remediable;
16.1.2. the Customer commits a material breach of the Contract which is capable of being remedied and such breach is not remedied within 14 days of receiving written notice of such breach;
16.1.3. the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within 30 days after the Supplier has given notification that the payment is overdue; or
16.1.4. any consent, licence or authorisation held by the Customer is revoked or modified such that the Customer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.
16.2. The Supplier may terminate the Contract at any time by giving notice in writing to the Customer if the Customer:
16.2.1. stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
16.2.2. is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Supplier reasonably believes that to be the case;
16.2.3. becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
16.2.4. has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
16.2.5. has a resolution passed for its winding up;
16.2.6. has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
16.2.7. suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
16.2.8. is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced;
16.2.9. has a freezing order made against it;
16.2.10. 16.2.10.is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;
16.2.11. is subject to any events or circumstances analogous to those in clauses 16.2.1 to 16.2.10 in any jurisdiction;
16.2.12. takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clauses 16.2.1 to 16.2.11 including giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.
16.3. The Supplier may terminate the Contract any time by giving not less than four weeks’ notice in writing to the Customer if the Customer undergoes a change of Control or if it is realistically anticipated that it shall undergo a change of Control within two months.
16.4. The right of the Supplier to terminate the Contract pursuant to clause 16.2 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to the Contract.
16.5. If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle the Supplier to terminate the Contract under this clause 16, it shall immediately notify the Supplier in writing.
16.6. Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Supplier at any time up to the date of termination.
17.1. Any notice or other communication given by a party under these Conditions shall:
17.1.1be in writing and in English;
17.2.2be signed by, or on behalf of, the party giving it (except for notices sent by email); and
17.1.3. be sent to the relevant party at the address set out in the Contract
17.2. Notices may be given, and are deemed received:
17.2.1. by hand: on receipt of a signature at the time of delivery;
17.2.2. by Royal Mail Recorded Signed For post: at 9.00 am on the second Business Day after posting;
17.2.3. by Royal Mail International Tracked & Signed post: at 9.00 am on the fourth Business Day after posting; and
17.2.4. by fax: on receipt of a transmission report from the correct number confirming uninterrupted and error-free transmission; and
17.2.5. by email: on receipt of a read receipt email from the correct address.
17.3. Any change to the contact details of a party as set out in the Contract shall be notified to the other party in accordance with clause 17.1 and shall be effective:
17.3.1. on the date specified in the notice as being the date of such change; or
17.3.2. if no date is so specified, five Business Days after the notice is deemed to be received.
17.4. All references to time are to the local time at the place of deemed receipt.
17.5. This clause does not apply to notices given in legal proceedings or arbitration.
18. Cumulative remedies
The rights and remedies provided in the Contract for the Supplier only are cumulative and not exclusive of any rights and remedies provided by law.
Unless stated otherwise, time is of the essence of any date or period specified in the Contract in relation to the Customer’s obligations only.
20. Further assurance
The Customer shall at the request of the Supplier, and at the Customer’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.
21. Entire agreement
21.1. The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
21.2. Each party acknowledges that it has not entered into the Contractor any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
21.3. Nothing in these Conditions purports to limit or exclude any liability for fraud.
No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, each party.
23.1. The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the Supplier’s prior written consent, such consent not to be unreasonably withheld or delayed.
23.2. Notwithstanding clause 23.1, the Customer may perform any of its obligations and exercise any of its rights granted under the Contract through any Affiliate provided that it gives the Supplier prior written notice of such subcontracting or assignment including the identity of the relevant Affiliate. The Customer acknowledges and agrees that any act or omission of its Affiliate in relation to the Customer’s rights or obligations under the Contract shall be deemed to be an act or omission of the Customer itself.
24. Set off
24.1. The Supplier shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract or under any other contract which the Supplier has with the Customer.
24.2. The Customer shall pay all sums that it owes to the Supplier under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
25. No partnership or agency
The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
26. Equitable relief
The Customer recognises that any breach or threatened breach of the Contract may cause the Supplier irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Supplier, the Customer acknowledges and agrees that the Supplier is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
27.1. If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
27.2. If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with the minimum such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
28.1. No failure, delay or omission by the Supplier in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
28.2. No single or partial exercise of any right, power or remedy provided by law or under the Contract by the Supplier shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Supplier.
29. Compliance with law
The Customer shall comply with Applicable Law and shall maintain such licences, authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.
30. Conflicts within contract
If there is a conflict between the terms contained in the Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the Conditions shall prevail to the extent of the conflict.
31. Costs and expenses
The Customer shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (and any documents referred to in it).
32. Third party rights
32.1. Except as expressly provided for in clause 32.2, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
32.2. Any Affiliate of the Supplier shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.
33. Dispute resolution
33.1. Any dispute arising between the parties out of or in connection with the Contract shall be dealt with in accordance with the provisions of this clause 33.
33.2. The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.
33.3. The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedure:
33.3.1. Within five Business Days of service of the notice, the contract managers of each of the parties shall meet to discuss the dispute and attempt to resolve it.
33.3.2. If the dispute has not been resolved within five Business Days of the first meeting of the contract managers, then the matter shall be referred to the chief executives (or persons of equivalent seniority) of each of the parties. The chief executives (or equivalent) shall meet within five Business Days to discuss the dispute and attempt to resolve it.
33.4. Either party may issue formal legal proceedings at any time whether or not the steps referred to in clause 33.3 have been completed.
34. Governing law
The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).
36. Variations in quantity
Reasonable endeavours will be exercised by us to deliver the correct quantity ordered, but estimates are conditional upon margins of 5% for work in one colour only print and 10% for other full colour work being allowed for overs or shortage (4% and 8% respectively for quantities exceeding 50,000)