Terms & conditions
- Terms & Conditions
1.1. The following terms and conditions apply to the Contract and to each future request for the supply of Services and/or materials received by the Agency from the Client from time to time unless otherwise agreed in writing.
1.2. The supply of the Deliverables shall be subject to these terms, which shall take precedence over any terms and conditions of the Client.
1.3. Orders placed by the Client leading to a contract which is not expressed to be subject to the terms and conditions in this Contract shall still be subject to them.
1.4. These terms and conditions supersede all previous terms and conditions and shall replace any terms and conditions previously notified to the Client by the Agency.
1.5. The Agency’s employees, subcontractors and/or agents are not authorised to make any representations or warranties concerning the Deliverables unless confirmed by the Agency in writing.
1.6. No oral warranties or representations shall bind the Agency (unless given by a director of the Agency).
1.7. The Client acknowledges that it does not rely on any representation and/or warranty which has not been made in accordance with these terms and conditions.
2.1. Proposals are not binding or capable of acceptance and are estimates of the work to be carried out and costs to be incurred only (unless stated otherwise) and shall be available for acceptance for a period of 7 days unless otherwise confirmed in writing by the Agency. Proposals may be withdrawn by the Agency at any time during this period by oral or written notice.
2.2. The Agency shall have the right to refuse to accept any order placed for Deliverables.
2.3. The Client shall be responsible for the accuracy of any information provided to the Agency to enable it to perform the Contract.
2.4. The Contract between the Agency and the Client shall come into effect on the Client’s acceptance of the Agency’s Proposal or the Client’s signature of a letter of engagement, whichever is the sooner.
2.5. If the Client cancels this Contract for any reason it shall have no further recourse against the Agency under this Contract.
2.6. The Agency reserves the right to charge the Client for any costs incurred by the Agency in the preparation of the Proposal pursuant to Clause 6 below.
2.7. If the Client approves any Proposal produced by the Agency, then the Client shall have no claim in respect of, nor any right to reject any Deliverables that are provided by the Agency in accordance with the Proposal agreed between the parties.
2.8. Where the Agency is engaged by the Client to provide the Deliverables on a continual basis, each delivery of the Deliverables or provision of Deliverables set out in the Proposal shall constitute a separate and distinct contract.
3.1. The Agency will use its reasonable care and skill in the production and supply to the Client of the Deliverables.
4.1. The Client shall pay the Job Cost in accordance with the payment schedule provided to the Client and in accordance with these terms and conditions.
4.2. The Job Cost shall be as quoted to the Client by the Agency as at the date of acceptance of the Proposal. The Job Cost shall be paid after deduction of any agreed discount and/or inclusion of any additional costs incurred pursuant to clause 2.6.
4.3. All prices are exclusive of any applicable VAT for which the Client shall be additionally liable.
4.4. Any payments due to the Agency shall be payable by the Client immediately through bank transfer or cleared funds. Time for payment shall be of the essence.
4.5. Subject to Clause 2.6, for the provision of Deliverables, the Client shall, in accordance with clause 4.4 pay:
4.5.1. a non-refundable Deposit to the Agency for the provision of the Deliverables upon the Client’s acceptance of the Proposal; and
4.5.2. the balance of the Job Cost quoted by the Agency immediately upon completion of the provision of the Deliverables; or
4.5.3. the annual Job Cost for hosting a website and domain renewals in advance within 30 days of the date of invoice.
4.6. If the Client fails to make any payment in full on the due date, the Agency may charge the Client any reasonable administration costs and/or interest (both before and after judgment) on the amount unpaid at a rate of 5% above the base rate from time to time of the Agency’s bank, compounded with monthly rests or otherwise in accordance with the provisions of the Late Payment of Commercial Debts (Interest) Act 1995 (as amended), whichever is the higher.
4.7. Any monies received by the Agency from the Client may be applied by the Agency at its option against any additional administration costs and/or interest charged prior to application against any principal sums due from the Client which may be applied in any order.
4.8. The Client shall pay all sums due to the Agency under this contract without any set off, deduction, counterclaim and/or any other withholding of monies.
4.9. Payment shall not be deemed to be made until the Agency has received either cash or cleared funds in respect of the full amount outstanding.
4.10. The Agency reserves the right to render an invoice to the Client at any time before commencing any work.
4.11. If a Job Cost has not been fixed by the Agency or agreed by the parties at the time of entering the Contract, the Agency
4.12. may require the Client to pay a percentage of the Job Cost (as estimated by the Agency) in advance to cover the Agency’s time attending meetings and/or producing Deliverables.
4.13. If any payment is not made in full to the Agency when due then the Agency may withhold or suspend future or current production of Deliverables (including the suspension of the live availability of websites) under the Contract and/or any other agreement with the Client.
4.14. If the production of any Deliverables is cancelled or the Contract is terminated by the Client before completion of the production of the Deliverables, the Agency shall be entitled to be paid on a quantum meruit basis for that part of the Deliverables already produced. The Agency may invoice the Client accordingly and such monies shall be immediately due for payment.
- Proposals, Deliverables and Changes
5.1. The Client warrants that any brief or instructions that it provides to the Agent is accurate in all respects.
5.2. The Agency shall have no Liability for errors in any brief or instructions or details supplied by the Client and the Client is solely responsible for their accuracy.
5.3. The Job Cost and any pre-set dates for supply (in respect of which time shall not be of the essence) of the Deliverables will be agreed on the basis of the Proposal, and therefore any changes to it after the entering into the Contract, whether resulting from alterations by the Client, delay in providing the Agency with materials, information, instructions or authorisations, supply of faulty materials to the Agency by the Client, or any other circumstances beyond the Agency’s control will be subject to additional charges for the Agency’s time and work and may involve delays in supply for which the Agency shall not be liable.
5.4. The Agency reserves the right to charge for any additional work carried out as a result of any alterations made to the Proposal for any reason.
5.5. The Client will pay the additional charges and will reimburse the Agency for all and any costs incurred under clause 5.3 and 5.4.
5.6. The Client shall indemnify and keep indemnified the Agency for any additional costs incurred by the Agency as a result of clause 5.3, 5.4 and for and against any and all claims, losses, expenses, proceedings, actions, awards, liabilities, costs (including legal costs on a full indemnity basis and increased administration costs) and any other losses and/or liabilities arising out of the Agency’s use of any brief, instructions, specifications, details and/or drawings supplied by the Client.
5.7. The Agency reserves the right to make changes to the Proposal as required from time to time by law provided that they do not have a material adverse effect on the quality of the Deliverables. If the Agency does make changes to the Proposal which have a material adverse effect on the Client, then the Client shall have the right to cancel the Contract without Liability.
5.8. The Client shall be responsible for checking and approving the Proposal and satisfying itself that the Proposal is accurate and adequate for the Deliverables.
5.9. If the Deliverables include website hosting services, where the Agency agrees to host the website on a shared server, the Client will not have access to the server unless otherwise confirmed in writing by the Agency
- Preliminary and Speculative Work
6.1. Fees, costs and expenses for services and materials produced or supplied by the Agency prior to the entering into of the Contract or for other services, or materials supplied, designed or produced in accordance with any instruction of the Client (regardless of whether or not the Client subsequently accepts a Proposal or places any order in respect of such work) shall be charged at the Agency’s discretion to the Client unless otherwise agreed by the Agency in writing and the Client shall pay all such charges within 30 days of invoice.
7.1. Unless otherwise agreed in writing the Agency will arrange and oversee all production and post-production related to the project described in the Proposal.
7.2. In the event that it is agreed that the Client shall arrange any production work itself, then the Agency shall not be responsible for the booking, supervision or quality control of any relevant facilities and shall have no Liability in relation to the payment of any charges in connection with the same, for which the Client shall be solely liable.
8.1. Written approval (Sign Off) (which shall include approval confirmed in e-mail) communicated to the Agency by the Client or any officer or employee of the Client of final copy, layouts, scripts, storyboards and designs and the like will constitute the Client’s acceptance of such copy, layout, script, storyboard or design and the Agency’s authority to proceed with production or publication as appropriate.
8.2. Where material is sent to the Client for Sign Off, the Client shall check it carefully and notify the Agency by e-mail of any errors or alterations.
8.3. The Agency will use its reasonable endeavours to effect any changes so notified by the Client pursuant to clause 8.2 but reserves the right to charge extra if any of these alterations either:
– go beyond the original accepted Proposal; or
– are notified to the Agency more than 3 working days after the supply of such materials
to the Client.
Any changes that are communicated to the Agency by the Client will be charged for at any time after the Sign Off by the Client.
8.4. Where notification by the Client of errors is either received by the Agency after Sign Off or does not occur at all before publication, the Agency will not be liable in respect of any such errors.
8.5. The Agency will not be liable for errors occurring in circumstances where the Client either:
does not pay for proofs, checking or mock-ups; or
oversees the print and production process or does not allow enough time in the production schedule to check layouts, copy, pagination or other content aspects.
8.6. The Agency cannot guarantee that any or all colours will be exactly replicated in the final version as published.
- Property and materials supplied by the Client
9.1. All property and materials belonging to the Client which are supplied by the Client to the Agent will be held by the Agency at the Client’s own risk.
9.2. The Agency shall not be responsible for and shall have no liability for defects in any Deliverables or other goods caused by defects in or the unsuitability of such materials or equipment provided by the Client for use in the production of the Deliverables.
9.3. The Agency shall have a general lien on all property and materials of the Client in its possession in respect of all unpaid debts due from the Client and shall be entitled on the expiration of 30 days’ notice to dispose of such goods or property as it thinks fit and to apply the proceeds towards payment of such debts.
- Intellectual Property Rights
10.1. All Intellectual Property Rights in the Deliverables shall be owned by the Agency absolutely, subject to Clauses 10.2 and 10.6 below.
10.2. The Agency may at its sole discretion grant the Client a non-exclusive revocable royalty free licence, coming into effect on payment of the Job Cost, to use any Intellectual Property Rights in the Deliverables for the purposes, in the territories and in respect of the products or services defined in the Proposal but shall be under no obligation to do so.
10.3. Such licence shall be automatically terminated if any of the events set out in clause 14 below should occur.
10.4. The Client shall not make any modification to any Intellectual Property Rights in the Deliverables and if the Client wishes to use or modify the Deliverables in ways going beyond the parameters in the Proposal, it must approach the Agency and obtain written consent.
10.5. The Client shall not be entitled to assign, sub-license, pledge and/or dispose of any of the Intellectual Property Rights without the express written consent of the Agency, such consent to be granted at the Agency’s absolute discretion.
10.6. The Client confirms that any material that the Client supplies to the Agency for use in the production of the Deliverables does not infringe the Intellectual Property Rights of any third party.
10.7. If any material that the Client supplies to the Agency for use in the production of the Deliverables involves the use of third party material or material containing third party Intellectual Property Rights, the Client shall secure such licence as is necessary to allow the required use of the same and shall indemnify the Agency and keep indemnified the Agency against all or any claims, losses, expenses, proceedings, actions, awards, liabilities, costs (including legal costs on a full indemnity basis and increased administration costs) and any other losses and/or liabilities arising out of the Client’s use of intellectual property belonging to any third party and supplied to the Agency for use in the performance of the contract.
10.8. Ownership of the Intellectual Property Rights shall remain vested in the Agency unless and until any assignment or other disposition of the Rights is agreed between the parties in writing pursuant to clause 10.4 above.
10.9. For the avoidance of doubt, where the Agency makes any presentation to the Client which contains material which goes beyond the scope of the Proposal or Statement of Works, the Client shall have no right to make use of any such material unless and until a separate contract is entered into between the parties.
10.10. Use of the Deliverables may involve the Client in continuing liability to third parties, for example for royalties, licence fees and performance fees. The Agency will endeavour to notify the Client of these as soon as practicable during the production process.
10.11. If, during or after the period of use of the Deliverables envisaged in the Contract, the Client wishes to use or authorise another to use any cartoon figure, distinctive device artwork, software, wireframe or other part of the Deliverables in ways outside those contemplated in the Contract, the Agency will not unreasonably withhold its consent for such use but may make such consent conditional on prior agreement between the parties as to reasonable fees and/or royalties.
- Compliance and Indemnity
11.1. It shall be the sole responsibility of the Client to ensure that the Deliverables comply with all local laws (whether consumer, public or civil), regulations and codes in all countries in which use is intended as stated in the Contract including, without prejudice to the generality of the foregoing any and all laws relating to defamation or to the infringement of the intellectual property rights of any person. It shall also be the Client’s responsibility to ensure that the Deliverables carry all disclaimers, warnings and public information which any competent lawyer of the Client in any of the relevant jurisdictions would advise.
11.2. Accordingly the Client agrees to indemnify, keep indemnified and hold harmless the Agency and the Agency’s agents and employees from any liability, cost, loss, damages award, sum payable by way of settlement or other expense of any kind (including reasonable legal fees) arising from any claim, demand or action alleging that the Deliverables or use of them are contrary to any law, code or regulation in any country.
- Publicity and Examples
12.1. Notwithstanding the licence described in clause 10 above or any other disposition of the Rights agreed between the parties, the Agency shall have a continuing right to use the Deliverables for the purposes of advertising or otherwise promoting the Agency’s work.
12.2. The Client shall unless otherwise agreed mark all design work supplied as part of the Deliverables with the words Designed by SDMG.CO.UK (or appropriate variants as agreed) in a suitable place. The Agency reserves the right to request the non-appearance or removal of this credit in any particular case. The Client shall comply with any such request within thirty days, but shall not thereby be obliged to make changes to material already produced or published.
12.3. The Client shall, within 28 days after production or publication commences (as appropriate), provide the Agency with 10 finished printed copies of any production run or other published material derived from the Deliverables.
13.1. The Agency will, where practicable, use its reasonable endeavours to estimate studio costs and extras such as couriers and other external services to be used in relation to the Deliverables, but this may not always be possible and precise estimates of such costs cannot be guaranteed.
13.2. Expenses related to production, (for example couriers, dubs, stock, print-outs, scans, media outlay and booking costs, overtime and general expenses such as hotel and travelling expenses) will be invoiced by the Agency and the Client shall pay these invoices on demand.
13.3. Where the Agency has provided the Client with a quotation or estimate based on costs to the Agency which subsequently increase the Client will pay the additional costs.
13.4. Where expenses are likely to be significant, the Agency reserves the right to require the Client to pay the full amount of the expected expense in advance.
13.5. Where additional expenses not contemplated by the Agency are incurred, either as a result of alterations to the Proposal otherwise at the Client’s request, the Client shall pay such expenses suffered by the Agency by way of settlement of the relevant invoices on demand.
14.1. If the Client:
– fails to make any payments to the agency when due;
– breaches the terms of this contract and, if the breach is capable of remedy, has not been breached within 14 days of receiving notice requiring the breach to be remedied;
– persistently breaches any one or more terms of this Contract;
– pledges or charges any Deliverables which remain the property of the Agency or ceases or threatens to cease to carry on business, or proposes to compound with its creditors, applies for an interim order under Section 252 of the Insolvency Act 1986 or has a bankruptcy petition presented against it, enters into a voluntary or compulsory liquidation as a receiver, administrator or administrative receiver appointed over all or any of its assets, or takes or suffers any similar action in any jurisdiction;
– exceeds the credit limit set by the Agency;
– appears to the agency due to the Client’s credit rating to be financially inadequate to meets its obligations under the contract; and/or,
– being a partnership or other unincorporated association is dissolved;
– being a natural person, dies; or
– appears reasonably to the Agency to be about to suffer any of the above events;
– then the Agency shall have the right, without prejudice to any other remedies, to exercise any or all of the rights set out in Clause 14.2.
14.2. If any of the events set out in Clause 14.1 above occurs in relation to the Client then:
– the Agency may enter, without prior notice, any premises of the Client (or premises of third parties with their consent) where any Deliverables owned by the Agency may be and repossessed and dispose of or sell any Deliverables found which are owned by the Agency so far as to discharge any sums due to the Agency under this contract or any other Agreement with the Client;
– the Agency may withhold delivery of any undelivered Deliverables;
– the Agency may withhold the performance of any services including the production of the Deliverables and web hosting services and cease any work in progress;
– the Agency may cancel, terminate and/or suspend without liability to the Client, any contract with the Client; and/or,
– all licences granted by the Agency under this Contract shall terminate immediately;
– all monies owed by the Client to the Agency shall immediately become due and payable.
- Delivery Acceptance and Returns
15.1. If the Deliverables include any goods, then delivery of such goods shall be regarded as occurring when either:
– two business days have elapsed following the day the Client has been informed that the goods are awaiting collection; or
– in cases where the Deliverables are goods to be delivered to the Client, on the day of delivery to the Client.
15.2. If the Deliverables include a website, then delivery of the website shall be regarded as the client ready date specified by the Agency (Client Ready Date).
15.3. The Agency will carry out repairs to bugs snags and undertake amendments which it considers to be minor (at its sole discretion) during an acceptance period of 14 calendar days from the Client Ready Date, (Acceptance Period) free of charge. Any repairs after the Acceptance Period or any changes which the Agency does not consider to be minor will be charged for by the Agency.
15.4. If the Client is unable to collect the goods as provided for in Clause 15.1 above, then the Agency shall be entitled to arrange storage and/or transportation for the goods on the Client’s behalf at the Client’s expense and all charges for such storage, transport and any insurance shall be payable by the Client forthwith on request.
15.5. The risk in Deliverables shall pass to the Client upon the commencement of supply or transportation to the Client or, where the Client will not accept supply on the date required by the Agency, of temporary storage arranged by the Agency.
15.6. Where either delivery difficulties or other circumstances necessitate the Agency electronically storing any part of the Deliverables for the Client’s future use, the Agency reserves the right to levy storage charges and charges for retrieval from storage, which the Client shall pay within 14 days of the date of the relevant invoice.
- Trade Marks and Domain Names
16.1. If any Deliverables use any trade marks, trading styles or trade names (‘Marks’) owned by the Client or under its control, it is agreed that the Agency shall have the right to use or allow use of any such Marks for the purpose of fulfilling the Agency’s obligations under the Contract. The Agency shall not gain any rights over such Marks by virtue of such use, but the Agency shall be entitled to use the Marks both during and after the production and supply of the Deliverables to promote and advertise its own work.
16.2. The Client shall ensure that all domain names used in connection with the Deliverables are wherever practicable properly registered and do not infringe any third party rights and that any Marks of the Client or any third party used in the Deliverables, including such Marks as are supplied by the Agency, are used in a manner which neither undermines the Client’s rights in its Marks nor infringes any third party rights.
- Rejection or Cancellation
17.1. Unless a rejection fee has been agreed in advance, the Client shall have no right to terminate the Contract, allege breach of Contract or seek any cancellation, reduction or repayment of the Job Cost on the basis of style or composition of the Deliverables or the functionality of websites.
17.2. Once the Contract is concluded as provided on these terms and conditions, any subsequent cancellation by the Client will result in the Client being liable for the full Job Cost as if the cancellation had not taken place, excluding such committed third-party expenses as the Agency is able to avoid liability for within its existing contractual commitments to suppliers.
18.1. Where Deliverables are supplied to the Client on computer disks or other electronic storage method, then the Agency remains the owner of these storage media and reserves the right to require immediate return of them. If additional copies of such disks are requested by the Client these may be supplied by the Agency at its discretion and on payment of a fee.
18.2. Should any materials be supplied to the Client in digital form, the Client may not amend it or otherwise use it for purposes outside those contemplated by this Contract without the Agency’s express prior written permission. The Agency will not retain copies of materials beyond 12 months from delivery to the Client unless at its discretion or by agreement with the Client.
18.3. In circumstances where the Deliverables constitute goods, the Agency shall retain title and ownership of the goods until it has received payment in full in cash or cleared funds of all sums due and/or owing for all Deliverables supplied to the Client by the Agency under this contract and any other Agreement agreed between the Agency and the Client.
18.4. Until payment in full of the price of all Deliverables supplied to the Client, the Deliverables shall be stored separately from any products or goods belonging to the Client or any third party and must clearly be marked and identified as being the Agency’s property. The Client agrees that the Agency’s employees and/or agents shall be entitled to enter the Client’s premises to check compliance with this Clause.
18.5. The Agency shall retain title and ownership of all intellectual property rights in accordance with Clause 10.1 above.
19.1. The Agency accepts liability for its own negligence or faults in the Deliverables, but only to the extent stated in this clause 19.
19.2. The Agency does not exclude or restrict its liability for death or personal injury resulting from negligence.
19.3. The Agency shall have no Liability for any defects in any Deliverables caused or contributed to as a result of the Deliverables being used for display or demonstration purposes or being handled by customers of the Client.
19.4. The Agency shall have no Liability for any defects in the Deliverables where the defects have been caused or contributed to by the Client to the extent so contributed.
19.5. The Agency shall have no Liability to the Client if the Job Cost has not been paid in full by the due date for payment.
19.6. The Agency shall have no Liability for damage, loss, liability, claims, costs or expenses caused or contributed to by the Client’s continued use of defective Deliverables after a defect has become apparent or suspected or should reasonably have become apparent or suspected to the Client.
19.7. The Agency shall have no Liability to the Client for defective Deliverables which are goods unless the event is notified to the Agency within the appropriate time limit as set out in Clause 15.6 of this Contract.
19.8. The Client shall, where reasonable, give the Agency a reasonable opportunity to remedy any matter for which the Agency is liable before the Client incurs any costs and/or expenses in remedying the matter itself. If the Client does not do so, the Agency shall have no Liability to the Client.
19.9. The Agency shall have no Liability to the Client to the extent that the Client is covered by any policy of insurance and the Client shall ensure that its insurers leave any and all rights of subrogation they may have against the Agency.
19.10. The Agency’s total liability to the Client in contract law or in tort or otherwise howsoever arising in relation to this Contract is limited to the amount of the Job Cost less any external costs incurred by the Agency. To the extent that any Liability of the Agency to the 1 Client would be met by any insurance of the Agency then the Liability of the Agency shall be extended to the extent that such Liability is met by such insurance.
19.11. The Agency shall have no Liability for any matters which are outside its reasonable control.
19.12. The Agency will not be liable to the Client for any loss or destruction of software or systems, temporary or otherwise, which occurs following use of the Deliverables except and to the extent that it is caused by the wilful default of one of the Agency’s employees.
19.13. The Agency will endeavour to ensure that the Deliverables contain no software routine designed to permit unauthorised access, disable or erase existing software or software contained in the Deliverables or any data or hardware. However, the Agency shall, (subject always to Clause 19.2 above) have no Liability for any damage (physical or otherwise), loss or expense caused either directly or indirectly by use of the Deliverables.
19.14. The Agency shall have no Liability for any failure, delay or defect in the supply or use of the Deliverables caused by the supply or specification by the Client of unsuitable material or content or by the reproduction of the Deliverables by a third party.
19.15. The Agency shall have no Liability to the Client if any hardware or software used in conjunction with the Deliverables malfunctions, fails or is otherwise unable to communicate with other systems or Internet users (including where computer viruses have caused such failures) such that the use of the Deliverables is hindered or impeded where such event could not reasonably have been prevented or controlled by the Agency.
19.16. The Agency shall have no Liability for any downtime or interruption when hosting a website as a Deliverable.
19.17. The Agency shall have no Liability for the Client’s failure to register or renew ownership of a domain name which a Deliverable is reliant upon.
19.18. The Agency shall have no Liability to the Client for the following loss or damage, howsoever caused and even if foreseeable by the Agency:
– economic loss including loss of profits, business, contracts, revenues, goodwill, opportunity, production and anticipated savings of any description;
– economic and/or similar losses;
– loss arising from any claim made against the Client by any other person; or
– loss or damage arising from the Client’s failure to fulfil its responsibilities or any matter under the of the Client; and/or,
– special damages and indirect losses.
19.19. Each of the limitations and/or exclusions in this Contract shall be deemed to be repeated and apply as a separate provision for each of:
– Liability for breach of contract;
– Liability in tort (including negligence);
– Liability for breach of statutory duty; and,
– Liability for breach of Common Law;
except in Clause 19.10 above, which shall apply once only in respect of all the said types of Liability.
19.20. All warranties, terms, conditions and duties implied by law relating to fitness, quality or adequacy are excluded to the fullest extent permitted by law.
19.21. Nothing in this Contract shall exclude or limit any statutory rights of the Client which may not be excluded or limited due to the Client acting as a consumer. Any provision which would be void under any consumer protection legislation or other legislation shall to that extent, have no force or effect.
19.22. The limitations in this Contract are necessary in order to allow the Agency to provide the Deliverables at its current prices. If the Client requires greater protection, then the Agency will agree to modify the limitations in return for the payment of a high price for the Job Cost and the Deliverables.
20.1. No waiver by the Agency of any breach of this Contract shall be considered as a waiver of any subsequent breach of the same provision or any other provision.
- Sub-Contracting and Assignment
21.1. The Agency may sub-contract any or all of its rights or obligations hereunder and may with the Client’s consent, such consent not to be unreasonably withheld, assign the benefit and burden of its rights and obligations hereunder to any other entity.
21.2. The Client shall not assign its interest in this Contract (or any part) without the written consent of the Agency.
- Confidential Information
22.1. Neither party shall divulge any confidential information which is supplied to it about the other party in the course of this Contract or any pre-Contract discussions, other than information forming part of the public domain otherwise than through a breach of this clause or any other obligation of confidence.
- Matters beyond the Agency’s reasonable control
23.1. The Agency is not liable for any breach of this Contract caused by matters beyond its reasonable control including (without limitation) acts of God, fire, lightning, explosion, war, disorder, flood, drought, industrial disputes (whether or not involving the Agency’s employees), weather of exceptional severity or acts of local or central government or other authorities.
24.1. If any provision of this Contract is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable then such invalidity or unenforceability shall not affect the other provisions of this Contract which shall remain in full force and effect. The parties agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
- Entire Agreement
25.1. Save as expressly provided herein, this Contract is the entire agreement between the parties on the subject matter contained herein and supersedes all representations, communications and prior agreements between the parties in that regard.
- Warranties and Representations
26.1. Each party acknowledges that upon entering into this Contract it does not rely and has not relied on any representation (whether negligent or innocent), statement or warranty made or agreed to by any person (whether a party to this Contract or not) except those expressly referred to in this Contract. The only remedy available in respect of any misrepresentation or untrue statement made to either party shall be a claim for damages for breach of contract under this Contract. This clause shall not apply to any statement, representation or warranty made fraudulently, or to any provision of this Contract which was induced by fraud for which the remedies available shall be those available under the law governing this Contract.
- Third Party Rights
27.1. A person who is not a party to this Contract has no rights under the Contracts (Rights of Third Parties) Act of 1999 to enforce any term of this Contract, but this does not affect any other right or remedy of a third party.
- Service of Notices
28.1. Any written notice required by this Contract should be sent to the address or contact details of the intended recipient shown overleaf. Notices can be sent by hand or by post.
- Governing Law and Jurisdiction
29.1. This Contract and any relevant interaction between the parties shall be governed by and construed in accordance with the laws of England and Wales and both parties agree to submit to the non-exclusive jurisdiction of the courts of England and Wales in relation to any claim, dispute or difference which may arise hereunder or in relation to any relevant interaction between the parties prior to this Contract.
30.1. In these terms and conditions the following words shall have the meanings given in this clause:
‘Agency’ means Super Duper Media Group Ltd t/a SDMG, registered in England & Wales, company number (6748777), VAT number (231127650);
‘Client’ means the person, firm or company named, addressed or otherwise indicated as the client;
‘Client Ready Date’ means the date when the Deliverables are completed and ready for approval of the Client in accordance with Clause 15.3;
‘Contract’ means the contract for the supply of the Deliverables by the Agency to the Client at the Job Cost on the delivery dates agreed and consisting of the other terms set out here and concluded by either the Client signing their acknowledgement of such terms and returning it to the Agency or the Agency starting work on the Deliverables;
‘Deliverables’ means the services, materials, products and/or website to be supplied by the Agency or the uploading and ongoing hosting of a website by the Agency under the Contract, as described in the Proposal;
‘Intellectual Property Rights’ means the copyright and related rights, trademarks and service marks, business names and domain names, goodwill and the right to sue for passing off rights in design, rights in computer software, rights in source code, database rights, rights to use and protect the confidentiality of, confidential information (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;
‘Job Cost’ means the fee to be charged to the Client for the Deliverables by the Agency, and any additional costs incurred by the Agency or otherwise agreed and confirmed by the Agency in writing;
‘Liability’ means liability for any and all damages, claims, proceedings, actions, awards, expenses, costs and any other losses and/or liabilities;
‘Proposal’ means the Agency’s offer, tender, proposition, statement of work or written brief in relation to Deliverables detailing all matters regarding the Deliverables and their functionality (where appropriate) for the Client.