The Customer's attention is particularly drawn to the provisions of clause 8.

 

1.           Interpretation

 

1.1            Definitions. In these Conditions, the following definitions apply:

                 Business Day: a day (other than a Saturday, Sunday or public holiday) 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 set out in clause 2.2.

                 Conditions: these terms and conditions as amended from time to time in accordance with clause 12.7.

                 Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.

                 Customer: the person or firm who purchases Services from the Supplier.

                 Deliverables: any Data, documents, equipment, technology, text, designs or images produced by the Supplier for the Customer.

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

                 Order: the Customer's order for Services as set out in the Customer's written acceptance of the Supplier's quotation.

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

                 Specification: the description or specification of the Services provided in writing by the Supplier to the Customer.

                 Supplier: Thread Media Limited registered in England and Wales with company number 03313086.

                 Supplier Materials: has the meaning set out in clause 4.1(f).

 

1.2            Construction. In these Conditions, the following rules apply:

                 (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 or permitted assigns;

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

                 (d)         any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall                              not limit the sense of the words preceding those terms; and

                 (e)         a reference to writing or written includes faxes [and e-mails].

 

2.           Basis of contract

 

2.1            The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

 

2.2            The Order shall only be deemed to be accepted when

                 (a)         the Supplier issues written acceptance of the Order; or

                 (b)         the Supplier provides the Services or Deliverables which are the subject of the Order; or

                 (c)         the Supplier notifies the Customer that it has entered into an agreement with a subcontractor on the Customer’s behalf; or

                 (d)         the Supplier provides the Customer with an invoice in respect of the Order

 

                 at which point and on which date the Contract shall come into existence (Commencement Date).

 

2.3            The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise,                    representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.

 

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 trade, custom, practice or course of dealing.

 

2.6            Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of [20] Business Days from its date of issue.

 

3.              Supply of Services

 

3.1            The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.

 

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

 

3.3            The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety                              requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

 

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

 

4.           Customer's obligations

 

4.1            The Customer shall:

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

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

                 (c)         provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office                                                accommodation and other facilities as reasonably required by the Supplier;

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

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

                 (f)          keep and maintain all materials, equipment, data, documents and other property of the Supplier (Supplier Materials) whether electronic                              or otherwise at the Customer'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.

 

 

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)        the Supplier shall without limiting its other rights or remedies 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 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 on a time and materials basis:

                 (a)         the Charges shall be calculated in accordance with the Supplier's standard daily fee rates, as set out in the quotation or Specification;

                 (b)         the Supplier's standard daily fee rates for each individual are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm                                worked on Business Days;

                 (c)         the Supplier shall be entitled to charge an overtime rate as agreed between the parties at the outset of the matter or in default of express                              agreement 130 per cent of the standard daily fee rate on a pro-rata basis for each part day or for any time worked by individuals                                    whom it engages on the Services outside the hours referred to in clause 5.1(b); and

                 (d)         the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier                                        engages in connection with the Services including, but not limited to, 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.

 

5.2            The Supplier reserves the right to increase its standard daily fee rates, provided that such charges cannot be increased more than once in any 12                  month period. The Supplier will give the Customer written notice of any such increase 3 months before the proposed date of the increase. If such                  increase is not acceptable to the Customer, it shall notify the Supplier in writing within 2 weeks of the date of the Supplier's notice and the                          Supplier shall have the right without limiting its other rights or remedies to terminate the Contract by giving 8 weeks’ written notice to the                              Customer.

 

5.3            The Supplier shall invoice the Customer on completion of the Services and during the term of the agreement at such intervals as shall be agreed                    between the parties in advance.

 

5.4            The Customer shall pay each invoice submitted by the Supplier:

                 (a)         within 30 days of the date of the invoice; 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.

 

5.5            All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being                    (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.

 

5.6            If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay                        interest on the overdue amount at the rate of 8% percent per annum above Barclays' base rate from time to time. Such interest shall accrue on a                    daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest                    together with the overdue amount.

 

5.7            The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any                        deduction or withholding required by law). The Supplier may at any time, without limiting its other rights or remedies, set off any amount owing                    to it by the Customer against any amount payable by the Supplier to the Customer.

 

5.8            If the Supplier provides the Customer with a discount in an invoice, that discount is made without prejudice to any other rights of the Company,                    and shall be deemed automatically withdrawn and unenforceable in the event the aforesaid invoice is not paid by the due date thereof and                        interest shall accrue thereon on the whole undiscounted invoice amount in accordance with clause 5.6 above.

 

6.           Intellectual property rights

 

6.1            All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.

 

6.2            The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer's use of any such Intellectual Property                        Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such                  rights to the Customer.

 

6.3            All Supplier Materials are the exclusive property of the Supplier.

 

7.              Licence:

 

7.1            The Supplier hereby grants to the Customer a non‑exclusive licence to use any software, coding or other material supplied by it in accordance                      with these conditions.

 

7.2            The Customer may only use material provided by the Supplier for the purpose described to the Supplier or referred to in the Specification or                        quote and may not allow such material to be used by any third party without the written agreement of the Supplier.

 

7.3            The Customer shall not save as permitted by these terms:

                 (a)         make more than one back‑up copy of any software supplied to it.   Any such copy shall in all respects be subject to the terms and                                      conditions of this Contract and shall be deemed to form part of the software supplied;

                 (b)         decompile, reverse engineer, use or have access to the source code versions of any software supplied without  the express prior written                              agreement of the Supplier.

 

8.           Confidentiality

 

                 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives                    which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or                    subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving                      party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who                    need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents                  and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also                    disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or                    by a court of competent jurisdiction. This clause 7 shall survive termination of the Contract.

 

9.           Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

 

9.1            Nothing in these Conditions shall limit or exclude the Supplier's liability for:

                 (a)         death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

                 (b)         fraud or fraudulent misrepresentation; or

                 (c)         breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

 

9.2            Subject to clause 8.1:

                 (a)         the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of                              statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract;                                and

                 (b)         the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in                                    contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount payable by the                              Customer for the Services under the Contract.

 

9.3            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.

 

9.4            This clause 8 shall survive termination of the Contract.

 

10.         Termination

 

10.1          Without limiting its other rights or remedies, either party may terminate the Contract by giving the other party 3 months' written notice.

 

10.2          Without limiting its other rights or remedies, 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 30 days of that party being notified in writing to do so;

                 (b)         the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to                              pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123                              of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so                              doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom                              any of the foregoing apply;

                 (c)         the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a                                    proposal for or enters into any compromise or arrangement with its creditors [other than (where a company) for the sole purpose of a                                  scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other                                      party];

                 (d)         a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other                                party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more                                other companies or the solvent reconstruction of that other party;

                 (e)         the other party (being an individual) is the subject of a bankruptcy petition or order;

                 (f)          a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such                                      process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged                                within [14] days;

                 (g)         an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an                                  administrator is given or if an administrator is appointed over the other party (being a company);

                 (h)         the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has                                appointed an administrative receiver;

                 (i)          a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other                              party;

                 (j)          any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect                                        equivalent or similar to any of the events mentioned in clause 9.2(b) to clause 9.2(i) (inclusive);

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

                 (l)          the other party's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately                                  fulfil its obligations under the Contract has been placed in jeopardy; or

                 (m)        the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing                                his own affairs or becomes a patient under any mental health legislation.

 

10.3          Without limiting its other rights or remedies, 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 this Contract on the due date for payment and fails to pay all outstanding amounts                    within 60 days after being notified in writing to do so.

 

10.4          Without limiting its other rights or remedies, the Supplier may suspend provision of the Services under the Contract or any other contract between                  the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 9.2(b)) to clause 9.2(m), or the Supplier                        reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this                          Contract on the due date for payment.

 

11.         Consequences of termination

 

                 On termination of the Contract for any reason:

                 (a)         the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of                                      Services supplied but for which no invoice has been submitted, the Supplier 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 this Contract;

                 (c)         the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, 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; and

                 (d)         clauses which expressly or by implication survive termination shall continue in full force and effect.

 

12.         Force majeure

 

12.1          For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to                  strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or                          transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or                  direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

 

12.2          The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a                      Force Majeure Event.

 

12.3          If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 4 weeks, the Supplier shall, without limiting its                    other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.

 

13.            General

 

13.1          Assignment and other dealings.

                 (a)         The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights                                  under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or                                agent.

                 (b)         The Customer shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, declare a trust                              over or deal in any other manner with any or all of its rights or obligations under the Contract.

 

13.2       Notices

 

                 (a)         Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party                              at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may                                  have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class                              post or other next working day delivery service, commercial courier, or e-mail.

                 (b)         A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in                              clause 12.2(a); 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; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent e-                                    mail, one Business Day after transmission.

                 (c)         The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

 

13.3       Severance

 

                 (a)         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.

                 (b)         If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend                                such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended                                      commercial result of the original provision.

 

13.4          Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any                            subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall                          constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No                    single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

 

13.5          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, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the                      other party in any way.

 

13.6          Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.

 

13.7          Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions,                      shall be effective unless it is agreed in writing and signed by the Supplier.

 

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

 

13.9          Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or                              claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).

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