Terms of Business (Retained)

TAILOR MADE MEDIA LTD TERMS OF BUSINESS

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.

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 11.8.

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: all documents, products and materials developed by the Supplier or its agents, subcontractors, consultants and employees in relation to the Services in any form.

Fees: the fees payable by the Customer for the supply of the Services in accordance with clause 5.

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Order: The Customer’s written acceptance of the Supplier’s Quotation.

Quotation: The Supplier’s written quotation to the Customer for the supply of Services. See above.

Services: the services supplied by the Supplier to the Customer as set out in the Quotation.

Supplier: Tailor Made Media Ltd registered in England and Wales with company number 10345668 whose registered office is at: York Science Park, Innovation Centre, Innovation Way, York, YO10 5DG.

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 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 shallnot limit the sense of the words preceding those terms; and

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

  1. BASIS OF CONTRACT

2.1                 The Supplier will issue a Quotation to the Customer, and the Customer will confirm the Order. 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 the Supplier issues written acceptance of the Order, or commences work for the Customer, whichever is the earlier, at which point and on which date the Contract shall come into existence (Commencement Date).

2.3                 The Order constitutes a minimum of 12 months service delivery from the Supplier, beginning at the Commencement Date.  The details of the Order specify the Deliverables.

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

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.

  1. SUPPLY OF SERVICES

3.1                 The Supplier shall supply the Services to the Customer using reasonable care and skill and in accordance with the Quotation in all material respects.

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

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 which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

  1. CUSTOMER’S OBLIGATIONS

4.1                 The Customer shall:

(a)                  ensure that the terms of the Order and any information it provides to the Supplier is 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; and

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

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.

  1. FEES AND PAYMENT

5.1                 The Fees for the Services shall be set out in the Quotation.

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

(a)                  upon receipt of the invoice (Due Date); 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.

5.3                 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.

5.4                 Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the Due Date: (a) the Supplier shall have the right to charge interest on the overdue amount at the rate of 8 per cent per annum above the then current Santander’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly, and (b) suspend the provision of the Services.

5.5                 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, 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.

  1. INTELLECTUAL PROPERTY RIGHTS

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

6.2                 All Deliverables are the exclusive property of the Supplier, until such time as the Customer has paid for them in full.

  1. 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 or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 7 shall survive termination of the Contract.  Confidentiality corresponding to those which bind the Receiving Party. This clause 7 shall survive termination of the Contract.

  1. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

8.1                 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).

8.2 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 £500,000 (five hundred thousand pounds).

8.3                 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

8.4                 This clause 8 shall survive termination of the Contract.

  1. TERMINATION

9.1                 Without limiting its other rights or remedies, each 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 the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach;

(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) 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;

(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; or

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

9.2                 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.

9.3                 Without limiting its other rights or remedies, the Supplier shall have the right to 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 9.1(b)) to clause 9.1(e), or the Supplier reasonably believes that the Customer is about to become subject to any of them.

9.4                 Without limiting its other rights or remedies, each party is required to give 3 months notice to terminate the contract, outside of any of the above circumstances.

10                  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 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 not be affected, 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 have effect after termination shall continue in full force and effect have effect after termination shall continue in full force and effect.

11                  GENERAL

11.1              Force majeure:

(a)                  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.

(b)                  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.

11.2              Assignment and subcontracting:

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

11.3              Notices:

(a)                  Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.

(b)                  Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.

(c)                  This clause 11.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall include e-mails and for the avoidance of doubt notice given under this Contract shall be validly served if sent by e-mail.

11.4              Waiver:

(a)                  A waiver of any right under the Contract 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 under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

(b)                  Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

11.5              Severance:

(a)                  If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

(b)                  If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

11.6              No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

11.7              Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.

11.8              Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by the Supplier.

11.9              Governing law and jurisdiction: 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.

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