1. INTERPRETATION
The following definitions and rules of interpretation apply in these Conditions: 1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.
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 11.6.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions (and including the Order Form).
Customer: the person or firm who purchases Services from the Supplier as set out on the Order Form.
Customer Default: has the meaning set out in clause 4.2.
Customer IP: means all Intellectual Property Rights of whatsoever nature that are the property of, or are licensed to, the Customer and includes any derivatives, improvements, enhancements or extensions thereto developed during the course of the provision of the Services.
Deliverables: any specific deliverables as may be set out in the Order Form and/or other deliverables agreed to be provided by the Supplier to the Customer as part of the Services.
Group: in relation to a company, means that company, any subsidiary or any holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company, whether incorporated in the UK or otherwise. Each company in a Group is a member of the Group.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, artificial intelligence software algorithms and automated technologies, 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 Form: the order form agreed (or deemed agreed pursuant to clause 2.3) between the Customer and the Supplier, to which these Conditions apply, setting out the particulars of the Services and Charges.
Services: the particular services, including any Deliverables and/or statement of work or specification, as set out on the Order Form and/or as may otherwise be agreed between the Supplier and the Customer.
Supplier: means the supplier as shown on the Order Form (and/or on invoices raised in respect of the Services), which may be any one or more of Digital Ethos Limited (registered in England and Wales with company number 08671105), Cadastra Digital Marketing Ltd (registered in England and Wales with company number 11357796), and/or other member(s) of their Group.
Supplier IP: means all Intellectual Property Rights of whatsoever nature (including, for the avoidance of doubt, and without limitation, Intellectual Property Rights in its reports, training materials and proprietary software, including artificial intelligence software algorithms and automated technologies) that are the property of, or are licensed to, the Supplier (or member of its Group) and includes any derivatives, improvements, enhancements or extensions thereto developed during the course of the provision of the Services.
Supplier Materials: has the meaning set out in clause 4.1(g).
Web Design: means the design process for a website or mobile application where these services are provided as part of the Services.
1.2 Interpretation:
(a) Unless expressly provided otherwise in this Contract, a reference to legislation or a legislative provision:
(i) is a reference to it as amended, extended or re-enacted from time to time; and
(ii) shall include all subordinate legislation made from time to time under that legislation or legislative provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes email.
2. BASIS OF CONTRACT
2.1 The Order Form constitutes an agreement by the Customer to purchase Services in accordance with these Conditions.
2.2 The Contract shall come into existence on the date on which the Order Form has been signed on behalf of the Customer and the Supplier or such earlier date on which the Supplier began to provide Services to the Customer or as otherwise agreed between the Supplier and the Customer (Commencement Date).
2.3 In the event that the Order Form is not signed by the Customer, or if an Order Form has not been completed but the Customer and Supplier have otherwise agreed between them the scope of Services and Charges, then the continued engagement of the Supplier by the Customer (as may be evidenced by the payment of invoices or otherwise) shall be deemed to constitute an agreed Order Form and the acceptance of these Conditions.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
3. SUPPLY OF SERVICES
3.1 The Supplier shall supply the Services to the Customer in accordance with the Order Form.
3.2 Unless otherwise set out in the Order Form, delivery dates will be provided once all required information has been reviewed.
3.3 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Order Form, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.4 The Supplier reserves the right to amend the specification of work set out on the Order Form 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 Customer in any such event.
3.5 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
3.6 Any additional services beyond those set out on the Order Form which may either be requested by the Customer or subsequently agreed between the Customer and the Supplier shall not form part of the Charges, and any additional fees associated with such additional work will need to be agreed in writing between the Customer and the Supplier.
3.7 The Customer acknowledges that the Supplier may from time to time engage the services of any member of its Group and/or other affiliated entity under common control with the Supplier (and/or any of its respective employees, agents, contractors and/or subcontractors) to assist in carrying out all or part of the Services. The Supplier undertakes that each member of its Group or other such affiliated entity (and/or any of its respective employees, agents, contractors and/or subcontractors) shall be bound by the same confidentiality obligations as the Supplier and that the Supplier shall remain liable to the Customer for the acts or omissions of any member of its Group or other such affiliated entity (and/or its respective employees, agents, contractors and/or subcontractors).
3.8 To the extent that the Services include Web Design:
(a) the Supplier undertakes to provide the Customer with a draft mock-up of the look and feel of the website and/or application or other work product and provide the Customer with a reasonable opportunity to provide its comments and feedback;
(b) the Supplier agrees to make updates to the mock-up as reasonably requested by the Customer, and to resubmit the work to the Customer for a further opportunity to provide comments and feedback provided that, to the extent such additional feedback may require significant design changes and/or significant new graphics and/or causes the number of pages to increase above any previously agreed limit, then the Supplier reserves the right (but only with the agreement of the Customer prior to undertaking the additional work) to charge the Customer an additional sum reflective of the additional time and/or cost to be incurred by the Supplier;
(c) the Supplier shall not be responsible for any grammar and/or spelling inaccuracies in any content which is provided directly by the Customer and has not been created by the Supplier;
(d) the Supplier shall be entitled to place a “website/app by Digital Ethos” (or similar wording) ‘type’ link to the Supplier’s own site in the footer of all websites and/or applications designed and/or developed by the Supplier (and to update the footer of the website and/or application annually each January with the current year), and the Customer agrees to include such statement and link, and not to remove it without the prior consent of the Supplier;
(e) the Supplier shall be entitled to reproduce samples of the website and/or application in its own marketing and/or portfolio listings (or that of other members of the Supplier’s Group);
(f) in the event that the Customer does not have access to original imagery and graphics for use on its website and/or application, the Supplier reserves the right to charge additionally for any stock image purchases, provided that the Supplier shall only do so with the Customer’s prior agreement.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services;
(b) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s facilities as reasonably required by the Supplier including (where the Supplier undertakes Web Design) access to manage and update the web analytics account(s) and administration rights to applicable management tools;
(c) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services (including without limitation sharing login details and access codes to assist the Supplier in providing online marketing services), and ensure that such information is complete and accurate in all material respects;
(d) 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;
(e) keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) 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;
(f) carry out modifications which might be recommended by the Supplier in accordance with the characteristics of the Services;
(g) be solely liable and responsible for the content of its website and/or mobile application (save in respect of any content originally created by the Supplier) and for the use (or misuse) of its website and/or mobile application, and shall indemnify and hold harmless the Supplier from any financial liability, including (without limitation) losses, damages, costs, and fines, resulting from such content and/or such use or misuse;
(h) inform the Supplier in advance of any changes which the Customer may propose to make to its website and/or mobile application where such change(s) is or are reasonably likely to materially impact the Supplier’s ability to achieve any online marketing objectives agreed as part of the Services.
(i) provide feedback at each stage of the project in one round of succinct amends; and.
(j) agrees and acknowledges that (i) website development projects are inclusive of three rounds of amends, (ii) all other creative projects are standard one round of amends; and (iii) delays in feedback may result in a delay in the final project completion.
4.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer 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 Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer 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 Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5 CHARGES AND PAYMENT
5.1 The Charges for the Services shall be as set out on the Order Form.
5.2 All costs are based on the information provided at the time of quoting and on the understanding that all essential information is, or will be, made available by the Customer. If information subsequently provided deviates from the Supplier’s initial understanding and adversely affects production times, the Supplier reserves the right to re-quote.
5.3 Quotes are valid for a period of 30 days from the date on which the quote is given.
5.4 The Supplier shall be entitled to charge the Customer for any out of pocket expenses reasonably and properly incurred in the performance of the Services by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
5.5 The Supplier reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the UK Retail Prices Index in the preceding 12-month period. The first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the UK Retail Prices Index.
5.6 The Supplier shall invoice the Customer by email monthly in respect of recurrent Services in accordance with the Order Form, and/or at such other time(s) and/or instalments as otherwise agreed or as set out on the Order Form in respect of project-based Services.
5.7 The Customer shall pay each invoice submitted by the Supplier:
(a) within 30 days of the date of the invoice (or as otherwise set out on the Order Form or agreed between the Supplier and Customer (including in accordance with any direct debit or credit terms agreed by the Supplier and confirmed in writing to the Customer); and
(b) 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.
5.8 All amounts payable by the Customer 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 Customer, the Customer 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 at the same time as payment is due for the supply of the Services.
5.9 If the Customer 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 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.7 will accrue each day at 5% a year above the Bank of England’s base rate from time to time, but at 5% a year for any period when that base rate is below 0%.
5.10 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).
6 INTELLECTUAL PROPERTY RIGHTS
6.1 The Customer IP shall belong to and remain the property of the Customer but the Supplier (and members of its Group) shall be entitled, during the term of this Agreement, to use the Customer IP to the extent necessary for, and in connection with, the performance of the Services.
6.2 The Supplier IP shall belong to and remain the property of the Supplier (or member of its Group), but the Customer shall be entitled to use the Supplier IP that was created or provided in connection with the Services for legitimate business purposes by way of a non-exclusive worldwide non-transferable licence, subject to payment in full of all sums payable under the Contract.
6.3 Subject to payment in full of all sums payable when due under the Contract, and subject to the further terms of this clause 6.3, the Supplier hereby assigns (and shall procure that the relevant member of its Group shall assign) to the Customer all existing and future Intellectual Property Rights created as a result of the Services and all materials embodying these rights to the fullest extent permitted by law. Insofar as they do not vest automatically by operation of law or under the Contract, the Supplier shall hold legal title in such Intellectual Property Rights on trust for the Customer. Provided that:
(a) Unless otherwise set out in the Order Form, raw design files will not be shared with or provided to the Customer;
(b) If final files are required, this needs to be agreed in the Order Form, and final files requested which date back more than 12 months will only be provided subject to an additional cost to be quoted at the time;
(c) Stock images provided have full and unlimited digital only usage unless stated otherwise; and
(d) In relation to User Generated Content which features Supplier staff:
(i) Digital usage is covered only for the duration of the Contract;
(ii) If the Customer churns and wishes to still use the content, it will be subject to standard usage requirements and will be quoted;
(iii) Raw footage and files are the property of the Supplier and will not be provided; and
(iv) the Supplier reserves the right at its discretion to require the Customer not to use such content.
6.4 The Supplier undertakes (at the cost of the Customer) to execute all documents, make all applications, give all assistance and do all acts and things at any time either during or after termination of the Contract, as may, in the opinion of the Customer (acting reasonably), be necessary to vest the Intellectual Property Rights in, and register or obtain patents or registered designs in, the name of the Customer and to defend the Customer against claims that works embodying Intellectual Property Rights infringe third party rights, and otherwise to protect and maintain the Intellectual Property Rights created as a result of the Services.
6.5 Each party warrants that it, or any person making disclosure of information on its behalf, has the right to supply all the information being supplied to the other party and that the supply of such information, and its receipt and use by such other party, will not infringe any rights, including any Intellectual Property Rights, held by any third party or result in a breach by the disclosing party (or any person making disclosure on its behalf) of any law, regulatory obligation or fiduciary duty owed to any third party. Each party agrees to indemnify the other party against any loss it may suffer as a result of the breach of this warranty by the disclosing party (or any person making disclosure on its behalf).
7 DATA PROTECTION
7.1 Each party warrants that any personal data and sensitive personal data that is provided to the other party, or which it requests the other party to process, for the purposes of the provision of the Services has been collected and is being disclosed in accordance with the provisions of any applicable data protection and/or privacy legislation and that consent to the transfer of such personal data to the other party, and by such other party to reputable third parties, has been obtained where required.
7.2 Each party warrants that any personal data or sensitive personal data provided to it by the other party shall be processed in a manner consistent with such receiving party’s obligations under applicable data protection or other legislation and that the receiving party shall treat such data in a manner consistent with the principles set out in such legislation.
7.3 The Customer acknowledges that the Supplier will retain reports and other documents related to the Services in accordance with the provisions of its data retention policy, as may be amended from time to time.
8 LIMITATION OF LIABILITY
8.1 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Nothing in this clause 8 shall limit the Customer’s payment obligations under the Contract.
8.3 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence; and
(b) fraud or fraudulent misrepresentation.
8.4 Subject to clause 8.3, the Supplier’s total liability to the Customer (save in respect of its failure to comply with its data processing obligations under clause 7) shall not exceed the amount of the Charges received by the Supplier for the provision of the Services under the Contract.
8.5 Subject to clause 8.3, the Supplier shall not be liable to the Customer for any of the following:
(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) indirect or consequential loss.
8.6 Subject to clause 8.3, the Supplier shall not be liable to the Customer in the event or to the extent that:
(a) The Customer is censured by a search engine;
(b) Such liability arises from the content of any third party website (including any third party website to which the Supplier may establish a back link as part of its search engine optimisation services) or any links or code used by such third party website;
(c) Such liability results from alterations to algorithms made by search engines without reasonable notice where such alterations may adversely affect the performance and results of a search engine optimisation campaign;
(d) Such liability results from the quality of the print output (save to the extent that print management forms part of the agreed Services);
(e) Such liability arises as a result of the Customer having failed to undertake reasonable tests on its website and/or application prior to launch (including by testing web forms to ensure enquiries are processed and delivered to the correct email address);
(f) the Customer’s website or application server goes offline as a result of a hacking attempt, website security breach or loss of service from a third party hosting partner or other circumstance outside the Supplier’s reasonable control, or such website or application is unable to transact due to a payment gateway outage;
(g) the liability arises from the use or failure of artificial intelligence software (including algorithms) created and/or designed and/or operated by a third party; or
(h) the liability arises from the failure of, or other issue relating to the hosting of, the Customer’s website and/or application where it is hosted on a third party platform.
8.7 The Supplier does not make any guarantee or representation that any search engine optimisation services provided by the Supplier as part of the Services will generate sales or a return on investment, and the Supplier shall not be held liable for any loss sustained by the Customer as the result of a search engine optimisation campaign being unsuccessful or if any search engine, online directory or search site chooses not to list a Customer’s website.
8.8 The Supplier reserves the right to refuse an order (including, without limitation, any applicable specification and/or proof or design request) which the Supplier believes (acting reasonably) is or may be of an illegal or libellous nature, or may be an infringement on the proprietary or other rights of a third party or is otherwise unsuitable for publication on the internet and/or any other medium.
8.9 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
8.10 This clause 8 shall survive termination of the Contract.
9 TERMINATION
9.1 Without affecting any other right or remedy available to it, and subject to clause
9.2:
(a) To the extent that the Contract relates to recurrent Services invoiced monthly, the Contract shall continue for a minimum period of 12 months from the Commencement Date, and shall automatically renew for a further minimum period of 12 months thereafter unless and until either party terminates the Contract by giving the other party not less than 4 months’ written notice such notice to expire no earlier than the next renewal date; and/or
(b) To the extent that the Contract relates to specific project-based Services, the Contract shall be for the specific period as set out on the Order Form or otherwise agreed between the Supplier and the Customer.
9.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 21 days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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 other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
9.4 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 Customer and the Supplier if:
(a) the Customer becomes subject to any of the events listed in clause 9.2(c) or clause 9.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them; and/or
(b) the Supplier reasonably believes that the Customer is about to become subject to any of the events listed in clause 9.2(b).
9.5 If the Supplier hosts a website for the Customer on the Supplier’s servers and the Customer fails to make a payment for the hosting service for two consecutive months, the Supplier may issue the Customer with a 14 day website suspension notice.
9.6 If the Supplier provides a website service plan for a monthly fee, and the Customer fails to make two or more consecutive monthly payments, the Supplier may issue the Customer with a website suspension notice.
9.7 If the Supplier issues the Customer with a website suspension notice in accordance with the preceding paragraphs, the Customer will have a period of 7 days to remedy the outstanding payments, failing which the Supplier shall be entitled to disable the Customer’s website and remove it from public view on the web. The Supplier will only re-instate the Customer’s website once payment has been made in full. The Supplier is also entitled to charge a reasonable administration fee to cover the cost of removing and then re-instating the website.
9.8 Upon the disabling of a Customer’s website following the issue of a website suspension notice, the Supplier will keep the Customer’s website on its servers for a period of 30 days, after which time the Supplier reserves the right to delete the website from its servers. The Supplier shall not be liable for any claims for any losses, material or implied, of any kind, from a situation where it has removed the Customer’s website from the internet for reasons of non-payment of monies owed to the Supplier, and the Customer agrees to indemnify and hold harmless the Supplier in this regard.
10 CONSEQUENCES OF TERMINATION
10.1 On termination of the Contract:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
11 GENERAL
11.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.2 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 Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
11.3 Confidentiality.
(a) Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.3(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, contractors, 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, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
11.4 Non-solicitation
Neither party shall (during the term of this Contract or for a period of twelve (12) months after its termination, whether due to the completion of Services or otherwise) directly or indirectly solicit, encourage for employment, employ or otherwise engage the services of any employee, consultant or subcontractor of the other party (or member of its Group) that was introduced to such party in connection with the Services provided hereunder, except with the prior written consent of the introducing party. In the event of any such employment or engagement, the hiring party agrees to reimburse the other party, promptly on demand, a recruitment fee equal to thirty percent (30%) (exclusive of value added tax, if applicable) of the first year’s gross salary and the value of benefits-in-kind of such hired person. This clause 11.4 shall not prohibit employment solicitation methods aimed at the general public and not specifically targeted at personnel of the other party.
11.5 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 misstatement based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
11.6 Variation. These Conditions are regularly reviewed and for that reason may be updated from time-to-time. In the event of any changes, the Customer will be notified by e-mail to the e-mail address provided on the Order Form. The Supplier will deem notification by e-mail “delivered” and served at the point it sends an e- mail to such registered e-mail address, irrespective of whether the e-mail is received. Notwithstanding any other term of these Conditions, the Customer shall be entitled during the period of 7 days following service (or deemed service) of such email to terminate the Contract by giving at least 60 days’ notice in writing (including by email) to the Supplier.
11.7 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 right or remedy. 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.
11.8 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this Contract deleted under this clause 11.8 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.9 Notices.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the Order Form.
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 11.9(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause 11.9 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.10 Third party rights.
(a) Each member of the Supplier’s Group shall be entitled to enforce the terms of the Contract.
(b) Subject to sub-clause 11.10(a), 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.
(c) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
11.11 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.
11.12 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.