Terms & Conditions

1.  INTERPRETATION  

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

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.

Client Default: has the meaning given in Clause 8.2.

Commencement Date:  has the meaning given in Clause 2.2.

Conditions:  these terms and conditions as amended from time to time in accordance with Clause 17.8.

Contract:  the contract between the Supplier and the Client for the supply of Goods and/or Services in accordance with these Conditions.

Client:  the person or firm who purchases the Goods and/or Services from the Supplier.

Commercial Client’s: a commercial entity which includes but is not limited to any individual, partnership or organisation that carries out business. 

Data Controller: has the meaning set out in GDPR Article 24 and section 1(1) of the Data Protection Act 1998.

Data Subject: an individual who is the subject of Personal Data.

Deliverables:  the deliverables set out in the Order produced by the Supplier for the Client.

Delivery Location:  has the meaning given in Clause 4.3.

Domestic Clients: anyone who has work carried out for them that is not done in connection with a business

Force Majeure Event:  has the meaning given to it in Clause 16.

GDPR: General Data Protection Regulation.

Goods:  the goods (or any part of them) set out in the Order.

Goods Specification:  any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Client and the Supplier.

Intellectual Property Rights:  patents, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world

Order: the Client’s order for the supply of Goods and/or Services, as set out in the Client’s written acceptance of the Supplier’s Proposal or Quotation.

Personal Data:  has the meaning set out in GDPR Article 4.1 and section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, in respect of which the Client  is the Data Controller and in relation to which the Supplier is providing Services under the Contract.

Processing and process:  have the meaning set out GDPR Article 4.2 and section 1(1) of the Data Protection Act 1998.

Quote/Quotation: a detailed proposal written offer from the Supplier to the Client outlining the Services and/or Goods to be supplied.

Services:  the services, including the Deliverables, supplied by the Supplier to the Client as set out in the Service Specification.

Service Specification:  the description or specification for the Services provided by the Supplier to the Client.

Supplier: Dark Cherry Creative Ltd registered in England and Wales with company number 11665358.

Supplier Materials:  has the meaning given in Clause 8.1(i).

1.2  Interpretation:

(a)  A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

(b)  A reference to a party includes its personal representatives, successors and permitted assigns. 

(c)  A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision. 

(d)  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.

(e)  A reference to writing or written includes faxes and emails.

2.  BASIS OF CONTRACT  

2.1 The Order constitutes an offer by the Client to purchase Goods and/or Services in accordance with these Conditions.

2.2 The Order shall only be deemed to be accepted when the Client issues written acceptance of the Order at which point, and on which date the Contract shall come into existence (Commencement Date).

2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or 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 and/or Goods 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 Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 14 Days from its date of issue.

2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.

3.  GOODS  

3.1 The Goods are described as the Goods Specification provided by the Supplier.

3.2  To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Client, the Client shall indemnify the Supplier 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 reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Goods Specification. This Clause 3.2 shall survive termination of the Contract.

3.3  The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Client in any such event.

4.  DELIVERY OF GOODS  

4.1 The Supplier will not deliver any Goods, until after receipt of clear payment for the same. 

4.2 Upon receipt of payment from the Client, the Supplier shall ensure that:

(a)  they confirm Order placement to the Client with an estimated date of delivery.

(b) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and 

(c)  it states clearly on the delivery note any requirement for the Client to return any packaging material to the Supplier. 

4.3 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Client that the Goods are ready.

4.4 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.

4.5 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Client’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.6 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Client in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Client’s failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.

4.7 If the Client fails to accept delivery of the Goods within three Business Days of the Supplier notifying the Client that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:

(a)  delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Supplier notified the Client that the Goods were ready; and 

(b)  the Supplier shall store the Goods until delivery takes place, and charge the Client for all related costs and expenses (including insurance).

4.8 If ten Business Days after the Supplier notified the Client that the Goods were ready for delivery the Client has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods.

4.9  The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Client to cancel any other instalment.

5.  QUALITY OF GOODS  

5.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Goods shall:

(a)  conform with their description and any applicable Goods Specification; 

(b)  be free from material defects in design, material and workmanship; 

(c)  be of satisfactory quality (within the meaning of the Sale of Goods Act 1979);

5.2  Subject to Clause 5.3, the Supplier shall, at its option, replace the defective Goods if:

(a) where a print has been provided, the artwork has been approved by the Client, prior to print; and

(b) the Client gives notice in writing within 14 days of receipt of the Goods;

(c)  the Supplier is given a reasonable opportunity of examining such Goods; and

(d)  the Client (if asked to do so by the Supplier) return such Goods to the Supplier’s place of business at the Client’s cost.

5.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty in Clause 5.1 if:

(a)  the Client makes any further use of such Goods after giving a notice in accordance with Clause 5.2;

(b)  the defect arises because the Client failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;

(c)  the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Client;

(d)  the Client alters or repairs such Goods without the written consent of the Supplier;

(e)  the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or

(f)  the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

5.4  Except as provided in this Clause 5, the Supplier shall have no liability to the Client in respect of the Goods’ failure to comply with the warranty set out in Clause 5.1.

5.5  The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

6.  TITLE AND RISK  

6.1 The risk in the Goods shall pass to the Client on completion of delivery.

6.2 Title to the Goods shall not pass to the Client until the Supplier receives payment in full (cleared funds) for the Goods and any other goods that the Supplier has supplied to the Client in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and

6.3 Until title to the Goods has passed to the Client, the Client shall:

(a)  store the Goods separately from all other goods held by the Client so that they remain readily identifiable as the Supplier’s property;

(b)  not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(c)  maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;

(d)  notify the Supplier immediately if it becomes subject to any of the events listed in Clause 14.2(c) to Clause 14.2(f); and

(e)  give the Supplier such information relating to the Goods as the Supplier may require from time to time.

6.4  If before title to the Goods passes to the Client the Client becomes subject to any of the events listed in Clause 14.2(c) to Clause 14.2(f), then, without limiting any other right or remedy the Supplier may have:

(a)  the Client’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and 

(b)  the Supplier may at any time:

(i)  require the Client to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and

(ii)  if the Client fails to do so promptly, enter any premises of the Client or of any third party where the Goods are stored in order to recover them.

7.  SUPPLY OF GOODS & SERVICES  

7.1 These Terms and Conditions apply to the following services (with full details of the specific services and goods which are to be provided to be detailed in the quote), provided by the Supplier:

1. Design: 

2. Online;

3. Offline.

4. Marketing:

5. Online;

6. Pay Per Click;

7. Social Media;

8. Email;

9. Search Engine Optimisation (SEO).

10. Websites:

    1. Standard;

    2. E-commerce;

    3. Hosting.

7.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Quotation, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

7.3 The Supplier reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Client in any such event.

7.4  The Supplier is entitled to (with no Client objection permitted) place a small credit on printed material, exhibition displays, advertisements and/or a link to the Supplier’s own website on the Client’s website. This will usually be in the form of a small logo or line of text placed towards the bottom of the page.

7.5 The Supplier is permitted to place websites and other designs, along with a link to the Client’s site on the Supplier’s own website for demonstration purposes and to use any designs in its own publicity and portfolios.

7.6 The Supplier is unable to guarantee the availability of any domain name. Where the Supplier is required to register a domain name on behalf of the Client, the Supplier will use their best endeavours to do so, but the Client should not assume a successful registration. The Supplier will therefore notify the Client should their domain of choice be not available and offer the best alternatives.

7.7 The Supplier cannot guarantee any particular placement in search engine rankings, due to the infinite number of considerations that search engines use when determining a site’s ranking. Acceptance by any search engine cannot be guaranteed and upon acceptance by a site, the time it takes to appear in search results will vary from one search engine to another. Rankings will also vary as new sites are added. 

7.8 The Supplier warrants to the Client that the Services will be provided using reasonable care and skill.

7.9 If the Supplier is required to supply and goods and/or services supplied by a third party, the Supplier does not give any warranty, guarantee or other term or condition as to the quality, fitness for purpose or otherwise, but shall, where possible, pass on to the Client the benefit of any warranty, guarantee or indemnity given by such third party to the Supplier.

7.10 The Supplier reserves the right to submit a new and separate proposal, for written approval if the Client requests changes or revisions which are deemed to be in excess of ten percent (10%) of the time required to produce the initial deliverables, and or the value or scope of the services. Work shall not begin on the revised services and/or until a fully signed revised proposal and, if required, any additional retainer fees are agreed.

8.  CLIENT’S OBLIGATIONS   

8.1 The Client shall:

(a)  ensure that the terms of the Order and any information it provides in the Service Specification and the Goods Specification are complete and accurate;

(b)  co-operate with the Supplier in all matters relating to the Goods and Services;

(c) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Goods and Services, and ensure that such information is complete and accurate in all material respects;

(d) supply assets for artwork within 24 hours of being requested;

(e) provide feedback on artwork within 48 hours of artwork being supplied;

(f)  provide a primary contact within the company that can be responsive to project requests;

(g) where a Website is being supplied, provide the Supplier with hosting information, relevant logins and passwords, plus logins for domains;

(h) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

(i)  keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Client’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation;

10. comply with all applicable laws, including health and safety laws;

11. accept that the Supplier cannot be held responsible for the quality of any images which the Client wishes to use, which are scanned from printed materials;

12.  understand that additional expenses may be incurred for any necessary action, including, but not limited to, photography and art direction, videography, photography searches, media conversion, digital image processing, or data entry services, colour correction and alteration of images;

13. test the site for functionality within the timeframe specified, when instructed to do so by the Supplier;

14. when requested by the Supplier to do so, will review deliverables within the time identified for such reviews and to promptly either:

15. approve the deliverables in writing; or 

(ii) provide clear written comments and/or corrections identifying any relevant  amendments, or objections.

10. maintain regular contact (in writing and/or via telephone) with the Supplier and understand that failure to do so and supply requested information within a 21 day period shall result in the Supplier requesting payment for the project in full.

8.2  If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or the Client’s agents, sub-contractors or employees, or by failure by the Client to perform any relevant obligation (Client Default):

(a)  without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays the Supplier’s performance of any of its obligations; 

(b)  the Supplier shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this Clause 8.2;  

(c)  the Client shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Client Default.

9.  CHARGES AND PAYMENT  

9.1  The Charges for the Services and Goods shall be calculated on a time and materials basis:

1. the Charges shall be calculated in accordance with the Supplier’s fee stipulated in the Order and Payment will be required in accordance with Clause 9.2(c);

2. The price for Goods shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Client, if necessary.

3. the Supplier’s Services and Goods (see Clause 7.1) will be charged in the following manner: 

4. Design – payment is either  per job or on a monthly basis, with specific details contained within the Supplier’s Quote and payment will be required and within 3 business days of the date of the Supplier’s invoice;

5. Social Media, Pay Per Click, Search Engine Optimisation – payable on a monthly basis for a minimum 3 month term, with each payment required on the monthly anniversary of commencement;

6. Email Marketing – payable on a monthly basis for a minimum 12 month term, with each payment required on the monthly anniversary of commencement;

7. Websites – 50% payable prior to commencement, with the remaining 50% payable upon conclusion and required within 3 business days of the date of the Supplier’s invoice;

8. Hosting – 12 month term, payable within 3 business days of the date of the Supplier’s invoice, to automatically renew on the anniversary.

9.2 The Supplier reserves the right to increase the charges for the Services on an annual basis with effect from the commencement of the contract or calendar year.

9.3 The Client shall pay each invoice submitted by the Supplier in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.

9.4 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Client, the Client shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.

9.5 If the Client fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under Clause 14 (Termination), the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 9.5 will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%.

9.6  All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

10.  INTELLECTUAL PROPERTY RIGHTS   

10.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by the Supplier.

10.2 The Supplier grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the Deliverables (excluding materials provided by the Client) for the purpose of receiving and using the Services and the Deliverables in its business.   

10.3 The Client shall not sub-license, assign or otherwise transfer the rights granted in Clause 10.2.

10.4 The Client grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to the Supplier for the term of the Contract for the purpose of providing the Services to the Client. 

11.  DATA PROTECTION AND DATA PROCESSING 

11.1  The Client and the Supplier acknowledge that for the purposes of General Data Protection Regulation (GDPR), the Client is the Data Controller and the Supplier is the Data Processor in respect of any Personal Data.

11.2  The Supplier shall process the Personal Data only in accordance with the Client’s instructions from time to time and shall not process the Personal Data for any purposes other than those expressly authorised by the Client.

11.3  The Supplier will take all reasonable measures to ensure they adhere to its obligations under Articles 30 and 32 of GDPR taking into account the information that the Data controller has made available to it.

11.4 The Supplier shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.

11.5  Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.

11.6  The Supplier warrants that, having regard to the state of technological development and the costs of implementing any measures, it will:

(a)  take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to: 

1. the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and

(ii)       the nature of the data to be protected. 

(b)  take reasonable steps to ensure compliance with those measures.

11.7  Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this Clause 11.

11.8  The Client acknowledges that the Supplier is reliant on the Client for direction as to the extent to which the Supplier is entitled to use and process the Personal Data. Consequently, the Supplier will not be liable for any claim brought by a Data Subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Client’s instructions.

11.9  The Supplier may authorise a third party (subcontractor) to process the Personal Data provided that the subcontractor’s contract:

(a)  is on terms which are substantially the same as those set out in the Contract; and

(b)  terminates automatically on termination of the Contract for any reason. 

12.  CONFIDENTIALITY  

12.1  Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, Client’s, Client’s or Suppliers of the other party, except as permitted by Clause 12.2.

12.2  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 carrying out the party’s obligations under the Contract. 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 12; and

(b)  as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

12.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

13.  LIMITATION OF LIABILITY: 

13.1  The total liability of Supplier to Client from any cause whatsoever, will be limited to the lesser of Client’s actual damages or the contractual price paid to Supplier for those Services supplied that are the subject of Client’s claim 

13.2 Subject to Clause 13.1, the Supplier shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:  

(a)  loss of profits;

(b)  loss of sales or business;

(c)  loss of agreements or contracts;

(d)  loss of anticipated savings;

(e)  loss of use or corruption of software, data or information;

(f)  loss of or damage to goodwill; and

(g)  any indirect or consequential loss.

13.3  Subject to Clause 13.1, the Supplier’s total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract, shall be limited to 50% of the total charges paid under the Contract.

13.4 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

13.5 All claims against Supplier must be brought within one 1 year after the cause of action arises and Supplier waives any statute of limitations which might apply by operation of law or otherwise

13.6 The Supplier does not indemnify any sub-contractor used to fulfil any Order for Goods and Services and any claim arising from their negligence, will need to be submitted by the client directly to the sub-contractor, details of which will be provided by the Supplier;

13.7 This Clause 13 shall survive termination of the Contract.

14.  TERMINATION  

14.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 30 days written notice.

14.2 Without affecting any other right or remedy available to it, Supplier may terminate the Contract by providing 7 days written notice to the other party if:

(a)  the Client commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 48 hours of that party being notified in writing to do so;

(b)  the Client fails to pay any amount due under the Contract on the due date for payment;

(c)  the Client 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;

(d) the Client suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; 

(e)  the Client’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; or

(f)  there is a change of control of the Client;

14.3 Without affecting any other right or remedy available to it, the Client may terminate the Contract by providing 30 days written notice to the Supplier if:

(a)  the Supplier commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 7 days after receipt of notice in writing to do so;

(b)  the Supplier 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

(c)  the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

14.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Client and the Supplier, if the Client fails to pay any amount due under the Contract on the due date for payment, the Client becomes subject to any of the events listed in Clause 14.2(c) to Clause 14.2(f), or the Supplier reasonably believes that the Client is about to become subject to any of them.

15.  CONSEQUENCES OF TERMINATION  

15.1  On termination of the Contract:

(a)  the Client shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices, including the remainder of any contracted retainer period (see Clause 9.1(c)(ii)&(iii)) and interest and, in respect of Goods and Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Client immediately on receipt; 

(b)  the Client shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then the Supplier may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

15.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

15.3  Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

16.  FORCE MAJEURE  

Neither party shall be liable for failure to perform, nor be deemed to be in default, under this Agreement for any delay or failure in performance resulting from causes beyond its reasonable control, including but not limited to acts of God, acts of Governmental authorities, acts of terrorism, natural catastrophe, fire, storm, flood, earthquake, riot, insurrection, civil disturbance, sabotage, embargo, blockade, acts of war, accident, epidemics, pandemics, lightning damage, electromagnetic interference, radio interference, strikes, industrial dispute, power failure or any other cause beyond its reasonable control..

17.  GENERAL  

17.1  Assignment and other dealings

(a)  The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

(b)  The Client shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract. 

17.2  Notices

(a)  Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its principal place of business; or sent by email to the address specified in the quote or order. 

(b)  Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by fax or email, at 9.00 am on the next Business Day after transmission.

(c)  This clause does not apply to the service of any proceedings or other documents in any legal. 

17.3  Severance 

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 shall not affect the validity and enforceability of the rest of the Contract.

17.4  Waiver

A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. 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.

17.5 No partnership or agency

Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

17.6  Entire agreement.

(a)  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.

(b)  Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misrepresentation] based on any statement in the Contract.

(c)  Nothing in this clause shall limit or exclude any liability for fraud.

17.7 Third parties’ rights

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.

17.8  Variation

Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).

17.9  Governing law 

The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

17.10  Jurisdiction

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.