These are our Terms of Business which shall together with the Order Form and any Proposal Documents govern our appointment with clients (including resellers) (referred to in these term as ‘you/your’).
The Terms of Business will prevail in case of conflict with statements within any Proposal Document.
Contrast Design Limited is a company incorporated in England and Wales (04807329) with its office at 344A Holdenhurst Rd, Bournemouth, Dorset, BH8 8BE (referred to in these terms as ‘we/us/our’) http://www.contrastdesign.co.uk
1. Interpretation and Definition
- Event of Force Majeure
- Any event beyond the control of the party concerned which renders it impossible or substantially hinders its performance including, without limitation, conventional or nuclear war, riot, civil commotion, terrorism, insurrection, acts of civil or military authority, fire, Act of God, epidemic, storm, embargoes or shortages, delays in transportation, inability to obtain supplies, the requirements or regulations of any civil or military authority but not including strikes or other forms of industrial action;
- Intellectual Property -
- Means any patent, registered design, copyright, database right, design right, topography right, trademark, service mark, application to register any aforementioned rights, trade secret, right in unpatented know-how, right of confidence and any other intellectual or industrial property right of any nature whatsoever in any part of the world;
- Project build stage -
- Commencement of work on individual element of the job
- Source Files -
- Computer files used to build the project/s but not the actual product itself
- Third Party Companies -
- Including but not limited to Mac and Web hosting companies, Apple Mac, Microsoft and Adobe
- VSP -
- Virtual Sales Presentations
2. Our Services
We are a design and multimedia company producing websites, CD Roms, print, video, production, animation, graphics and specialist services/products such as VSP’s.
We will provide these products and/or services in a professional and efficient manner. We will retain the source files for all products and services rendered, including proprietary code, video source and project data.
You understand and agree that we are not a web-hosting company. We utilise the services of a third party web hosting company however cannot guarantee either the availability, service standards, or financial security/solvency of the web hosting company. Please request the hosting company's terms and conditions. You may arrange and manage an alternative web hosting company if preferred. In any event you will be responsible for maintaining appropriate hosting backups.
3. Your Responsibilities
You confirm that any images, music, or assets supplied to undertake the contract are the property of your company or you have an appropriate licence to use the assets.
You agree to pay the contract price and any other monies payable under the terms and invoiced by us, immediately on issue of the invoice and in any event no later than 30 days.
You agree to provide accurate, complete and timely information and content to enable us to fulfil our obligations under these terms of business.
The products and/or services are provided to run on any computer that conforms to a minimum technical specification document (a copy of the specification is available on request). Alternative requirements must be advised before the project build stage. We cannot be held responsible for any changes to your operation systems, software or computer systems that affect your requirements after this time.
You agree that we shall provide the products and/or services in reliance on the information and data provided by you.
We will not be liable for any damage incurred to your property whilst filming at any location. You are responsible to ensure that suitable Employers Liability insurance is in place.
You agree not to approach staff, freelancers or subcontractors (including Models, Actors/Actresses) introduced by way of our services to you, for direct employment or contractual work unless specific agreement has been made with us.
A payment plan for the services rendered will be issued along with any proposal or quotations supplied.
Additional expenses and mileage will be charged at cost and are payable immediately upon being incurred, as invoiced.
VAT shall be charged at the prevailing rate and is in addition to the contract price, additional expenses and mileage payable.
Change requests to the job specification after project build stage may incur a reasonable amendment cost in addition to the agreed contract price, based on additional workload required from us. In addition a fee will be charged for ongoing maintenance services as requested by you. These fees will be agreed with you before services are rendered.
Where information and content have not been provided by you in a timely manner or within 90 days at the latest, we reserve the right to invoice the remaining amount owed under the contract, in advance of services rendered, for immediate payment on issue of our invoice.
Legal and beneficial title shall remain with us until payment is received in full and in cleared funds of the contract price and additional expenses.
In the event of late payment we retain the right to charge interest at a monthly rate of 2.5% or statutory interest rates, whichever is the higher.
These terms of business shall take effect immediately and shall continue with full force and effect until completion of all product and/or services by us, payment of all fees and expenses due from you or until replaced by new terms of business.
These terms of business may be terminated at any time by mutual agreement.
With effect from expiry or termination (whatever the reason for termination) we shall have no further obligation to perform any of the Services and all fees and expenses payable by you shall become due and payable. We will continue to provide Services at your request but only if we are able to do so and can agree an appropriate costs.
6. Data Protection Act
We warrant that we will duly observe all the requirements of the Data Protection Act 1998.
Except as set out below, we agree to keep all information received from you confidential and to use it solely for the purpose of providing the Services. This obligation of confidentiality will not apply where: you have given written permission otherwise; disclosure is required to satisfy legal obligations; such information is in the public domain; or the information is rightfully in our possession other than as a result of a breach of any obligation of confidentiality.
8. Intellectual Property
Intellectual Property rights in any product and/or work created for the purposes of this contract, to include but not limited to photographs, video and 3D models, shall vest in us. We grant a licence to you to use such product and/or work indefinitely.
Your consent is provided for us to use brand, trademarks, trade names and logos for the purposes of carrying out our obligations under this contract.
A discrete Contrast Design link will be inserted at the bottom of all VSP’s and websites created. This will be removed if requested.
9. Third Party Companies
No liability shall arise for any errors or deficiencies in the services arising out of internet updates from third party companies.
10. Force Majeure
We shall not be liable in any way for failure to perform, or delay in performing our obligations under these terms of business if the failure or delay is due to causes outside our reasonable control. In the event of a Force Majeure arising we will notify you as soon as reasonably practicable.
11. Governing Law and Jurisdiction
These terms of business shall be governed by and construed in accordance with English law and any dispute arising out of or in connection with it shall be submitted to the exclusive jurisdiction of the English courts.
12. Terms Relating to our Hosting and Data services
1.1 In this Agreement, the following words and phrases shall, unless the context otherwise requires have the following meanings:-
1.1.1 “Acceptable Use Policy” means Contrast Design's Acceptable Use Policy, the current version of which is available on the Contrast Design Website, as amended from time to time;
1.1.2 “Agreement” has the meaning set out in Clause 2.1;
1.1.3 “Cancellation Fee” means those fees set out in clause 3;
1.1.4 “Contrast Design” means Contrast Design Limited of 21 Southampton Row, London WC1B 5HA;
1.1.5 “Contrast Design Equipment” means any hardware, cabling, peripherals, software or any other equipment that Contrast Design shall provide the Customer as part of the Services, whether owned by Contrast Design or a third party supplier but specifically excludes equipment that has been sold outright to the Customer;
1.1.6 “Contrast Design Website” means the websites operated by Contrast Design within the Contrast Design.com and Contrast Design.it domains (as such URL may change from time to time);
1.1.7 “Commencement Date” means the date the services are successfully delivered;
1.1.8 “Confidential Information” means all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, representatives or advisers (together its Representatives) to the other party and that party’s Representatives in connection with this Agreement including any information relating to the business, affairs, customers, clients and suppliers of the disclosing party (or of any Group Company of the disclosing party) and any information relating to the services, product information, know-how, designs, trade secrets or software of the disclosing party (or of any Group Company of the disclosing party);
1.1.9 “Customer” means the person, group of people, or company, who receive the Service from Contrast Design under the terms of this Agreement, as identified in the Order Form;
1.1.10 “Customer Equipment” means any hardware, cabling, peripherals, software or any other equipment that the Customer owns and uses as part of the Services;
1.1.11 “Fees” means the fees and charges payable by the Customer for the use of the Services and all other fees and charges payable by the Customer to Contrast Design in accordance with this Agreement;
1.1.12 “Force Majeure Event” means any circumstances beyond the reasonable control of either party to this Agreement including but not limited to adverse natural events such as fire, storm, flood and extreme weather conditions; the outbreak of hostilities, riot, civil disorder or commotion; acts of terrorism; industrial disputes or acts or defaults of any local or central government or other competent authority;
1.1.13 “Group Company” means any holding company or subsidiary of either party to this Agreement, or any subsidiary of any such holding company as such terms are defined in section 736 Companies Act 1985 (as amended);
1.1.14 “Initial Period” means 12 months from the Services Commencement Date, or such other period as set out in the Order Form;
1.1.15 “Minimum Written Notice” means the period of written notice to be given by the Customer to Contrast Design in order to terminate the provision of the Services being:- (a) 30 days.
1.1.16 “Order Acceptance Form” means the form which the Customer is sent when Contrast Design accepts the Customer’s offer to provide the Services;
1.1.17 “Order Form” means the form(s) (as amended by Contrast Design from time to time) which lists the Services requested by the Customer or the online shopping basket on Contrast Design’s website for orders placed online. 1.1.18 “Renewal Period” means the period of 12 months commencing on the expiry of the Initial Period, and each successive period of 12 months thereafter (or such other period as is set out in the Order Form) (each being a “Renewal Period”);
1.1.19 “Service Deliverables” means any materials, equipment, software, deliverables or other items of any type developed, created or supplied (whether alone or jointly) by Contrast Design or any Contrast Design Group Company in the course of the provision of the Services;
1.1.20 “Service Description” means the description of the Services, which if appended to this Agreement, forms a part of it;
1.1.21 “Service” means a service set out in the Order Form and/or the Service Description, to be provided by Contrast Design to the Customer pursuant to this Agreement;
1.1.22 “Service Commencement Date” means the date on which a Service is successfully installed;
1.1.23 “Service Term” means, in relation to each of the Services, the period from the Service Commencement Date to the expiry or termination (for any reason) of the Services pursuant to this Agreement;
1.1.24 “SLA” means the service level agreement applicable to the Service;
1.1.25 “Target Installation Date” means the estimated date provided by Contrast Design or any third party supplier for the installation of the Service;
1.1.26 “Terms and Conditions” means these terms and conditions;
1.1.27 “Working Day” means 09.00 to 17.30, Monday to Friday excluding UK Public Holidays.
1.2 In this Agreement, unless the context otherwise requires:
1.2.1 clause, schedule and paragraph headings shall not affect the interpretation of this Agreement;
1.2.2 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.3 words in the singular shall include the plural and vice versa;
1.2.4 a reference to one gender shall include a reference to the other gender;
1.2.5 a reference to a statute, statutory provision or subordinate legislation is a reference to it as it is in force from time to time taking account of any amendment or re-enactment;
1.2.6 a reference to “writing” or “written” includes mail, faxes and e-mail;
1.2.7 any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to what most nearly approximates to the English legal term in that jurisdiction; and
1.2.8 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.
2. The Agreement
2.1 This Agreement consists of these Terms and Conditions, Acceptable Use Policy and if applicable Order form, SLA and Service Description. The terms of this Agreement refer to the Service which the Customer has requested and Contrast Design has agreed to provide in accordance with the procedure set out in Clause 3.1.
2.2 Any conflict or inconsistency between any provisions of the documents referred to in Clause 2.1 shall be resolved in accordance with the following order of precedence:
2.2.1 Order Form;
2.2.2 Service Description;
2.2.4 Terms and Conditions;
2.2.5 Acceptable Use Policy.
2.3 This Agreement shall take effect on the Commencement Date and shall continue unless and until terminated in accordance with the provisions of Clause 8.
2.4 Contrast Design may make any changes to this Agreement (including to these Terms and Conditions, any Order Form, Service Description and any SLA) as it deems necessary from time to time to take into account operational and technical matters (including the terms on which its third party providers provide Contrast Design with services) and changes to any applicable laws and regulations. Such changes shall be notified to the Customer by posting the changes to the Contrast Design Website and shall be deemed to be incorporated into this Agreement and be legally binding on the parties with effect from the date such posting is made. Contrast Design will endeavour to give 30 Working Days‟ notice of any such changes but any failure to give such notice shall not act to prevent such changes having full contractual effect.
3. Ordering and Provision of Services
3.1 During the Term, the Customer may request Services from Contrast Design in accordance with the following procedure:-
3.1.1 The Customer shall request by signing and submitting an Order Form or completing an online order on the Contrast Design Website in respect of such Services. The Order Form shall constitute a written offer by the Customer to enter into a legally binding contract with Contrast Design for the provision of such Services and such offer shall remain valid for a period of 14 days from the date of that the Order Form is submitted to Contrast Design;
3.1.2 If Contrast Design declines to accept any Order Form submitted by the Customer, it shall notify the Customer of its decision after receiving the Order Form, as soon as reasonably practicable thereafter and not longer than within 14 calendar days;
3.1.3 If Contrast Design agrees to accept the Order Form, Contrast Design shall send an Order Acceptance Form by way of confirmation to the Customer and shall be obliged to provide and the Customer shall be obliged to accept the provision of the Services, subject always to the provisions of this Agreement;
3.2 The Customer will not be entitled to alter or change the Services during the Services Term without the prior written agreement of Contrast Design. Any such alteration may be subject to the payment of additional Fees as determined by Contrast Design.
3.3 Contrast Design will use all reasonable endeavours to comply with the Customer’s requests in relation to the installation of the Services. However, Contrast Design’s decisions relating to the availability of the Services (or part thereof) will be final and binding.
3.4 Contrast Design will endeavour to install the Services in accordance with the Target Installation Date. However, Contrast Design shall not be liable for any failure to meet such dates as all dates referred to in relation to the Target Installation Date and the Service Commencement Date are estimates.
3.5 If required by Contrast Design, the Customer shall prepare the Premises in accordance with Contrast Design’s instructions and provide Contrast Design (or its third party suppliers) with reasonable access to the Premises at times to be agreed.
3.6 At any time during the Services Term, Contrast Design has the right to upgrade Customers to a different level of service if, in the opinion of Contrast Design, the existing Services being provided to the Customer are or become inappropriate or insufficient to meet the Customer's requirements and as a result Contrast Design considers the Customer requires different Services which are more appropriate to the Customer's usage pattern or needs. Contrast Design will consult with the Customer if Contrast Design wishes to exercise its rights under this Clause.
3.6.1 If the Customer agrees to change the Services in accordance with Contrast Design’s recommendation, the Customer may be liable for the higher fees and costs associated with the upgraded Services and any termination or cancellation fees associated with the terminated Services.
3.6.2 If the Customer does not agree to the upgraded Services, Contrast Design shall be entitled to terminate the provision of the existing Services on providing 30 days notice in writing. In the event that the Customer chooses not the upgrade and Contrast Design allows the Customer to continue using the existing Services, any applicable SLA ceases to apply.
3.7 Contrast Design may from time to time give directions about the use of the Services to the Customer which Contrast Design thinks is reasonably necessary in the interests of safety or the quality of service to Contrast Design's other customers. The Customer shall comply with all such directions.
3.8 As part of its Service offering Contrast Design may have to move the location of certain Contrast Design and/or Customer Equipment. The Customer agrees that upon receipt of prior notice from Contrast Design, Contrast Design shall be free to move the Equipment as it sees fit and wherever possible Contrast Design will endeavour to minimise any adverse impact on the Services. All costs and expenses incurred in connection with such relocation of the Equipment shall be borne by Contrast Design.
3.9 Contrast Design reserves the right to alter any third party suppliers used to supply the Services.
3.10 The Customer may cancel the Services in full prior to the Target Installation Date by providing prior written notice to Contrast Design subject to the payment of the Cancellation Fee set out in clause 3.11 below.
3.11 If the Customer terminates the Services before the Target Installation Date in accordance with 3.10 the Customer must pay the Cancellation Fee to Contrast Design calculated as follows:
3.11.1 Where notice is given 30 Working Days‟ or more prior to the Target Installation Date: 25% of that Service’s total contract value;
3.11.2 Where notice is given between 10 Working Days and 30 Working Days prior to the Target Installation Date: 80% of that Service’s total contract value;
3.11.3 Where notice is given less than 10 Working Days prior to the Target Installation Date: 100% of that Service’s total contract value.
4. Customer Obligations
4.1 It is a condition of this Agreement that the Customer shall at all times use the Services in accordance with the Acceptable Use Policy.
4.2 The Customer shall not, nor knowingly permit any other person to, use the Services:
4.2.1 to send, knowingly receive, upload, download, display or use any material which:
(a) is abusive, indecent, obscene, defamatory, racist, offensive, menacing or infringing of any obligation as to confidential information or copyright or any other Intellectual Property Rights; (b) contains unlawful security devices, viruses, worms, trojan horses or similar; (c) contravenes any laws or regulations; or (d) which may harm or damage the Contrast Design network;
4.2.2 in connection with the carrying out of fraud or other criminal offence;
4.2.3 to send unsolicited advertising or mail shots of any kind in breach of the Privacy and Electronic Communications Regulations 2003 (or any equivalent regulations);
4.2.4 in a way which does not comply with instructions given by Contrast Design or its agents or contractors.
4.3 Any offer of „unlimited bandwidth‟ associated with any hosting product is made on the condition that the hosting service will not be used for;
4.3.1 streaming including but not limited to Shoutcast services, video or audio conferencing or streaming, or the real-time delivery of media files
4.3.2 file sharing via peer to peer file networks
4.3.3 virtualisation of the server for resale of virtual machines, except where Contrast Design have provided written authorisation of this use.
4.3.4 use of virtualisation techniques which split your server into two or more virtual machines, except where Contrast Design have provided written authorisation of this use.
4.3.5 Contrast Design reserves the right to cancel any service on any shared platform (including Virtual Servers) which is affecting the ability of the platform to provide acceptable levels of services on the same platform
4.4 The Customer will have 2 Working Days from the Services Commencement Date in which to notify Contrast Design of any defects in the installation or the operation of the Service. Unless the Customer provides such notification within that period, the Services will be deemed to have been provided correctly. If the Customer notifies Contrast Design of any such defect, Contrast Design will use its reasonable endeavours to fix such defect and the Customer shall provide Contrast Design (or its third party supplier) with reasonable assistance or access to the premises. Failure to provide Contrast Design with reasonable assistance or access to the premises may result in invoicing commencing before the defect has been rectified. The provisions of this paragraph shall apply to any re-installation of the Services and the Service Commencement Date will be amended accordingly. Once acceptance of the Services has been deemed to have been given by the Customer, invoicing will commence from the Service Commencement Date.
4.4.5 Without prejudice to its other rights and remedies, Contrast Design will be entitled to suspend the Services and/or terminate the Agreement if Contrast Design in its sole discretion believes or has reason to believe that the Customer is in breach of any provision of this Clause 4.
5. Fees for the Services
5.1 Contrast Design shall provide a valid VAT invoice to the Customer for all Fees. The Customer shall pay to Contrast Design the Fees for the Services in the amount and on the basis specified in the Order Form(s). Save as expressly set out in the Order Form(s) all invoices issued by Contrast Design under this Agreement shall be paid by the Customer in cleared funds on the first working day following the date of invoice. Where more than one Service is included on any Order Form, Contrast Design may invoice for each of the Services separately.
5.2 The Services may be subject to installation site surveys. Additional installation charges may arise as a result of such surveys (“Additional Charges”). We will notify you of Additional Charges applicable to your Service as soon as is practicable. If we receive survey results giving rise to Additional Charges for your Service after sending your Order Acceptance Form, we will notify you of these Additional Charges. You may cancel the Services in the Order Form without penalty if you notify us in writing within 10 days of the date of our notice of the Additional Charges. If we do not receive notice from you within that time, the Additional Charges will be added to the price set out in this Order Form.
5.3 Contrast Design may alter the amount of, or payment terms relating to, the Fees at any time during the Term for the following reasons:
5.3.1 to take account of any increase in the costs incurred by Contrast Design in the provision of the Services (including any increase in the costs or charges of any third party supplier or licensor to Contrast Design);
5.3.2 to pass on any additional charges or fees imposed by any third party supplier or licensor to Contrast Design at any time. Contrast Design shall notify the Customer in writing of any such alteration (either increase or decrease) and shall endeavour to give the Customer 30 days‟ prior notice of such charge.
5.4 The Fees are not refundable in any circumstances, except where expressly stated otherwise in this Agreement. If the Customer terminates the Services, Contrast Design will not refund Fees paid in advance by the Customer save where the provision of the Services by Contrast Design or this Agreement is terminated by the Customer pursuant to Clause 8.4.
5.5 Fees are stated exclusive of Value Added Tax, which shall be paid by the Customer unless otherwise stated.
5.6 Fees do not include charges for any third party communications services used by the Customer to connect the Customer to the Services unless otherwise stated.
5.7 Where Contrast Design provides advanced support, custom programming or configuration, or software installation which is not referred to in the Order Form then it may charge the Customer additional Fees which will be calculated on a time and materials basis at Contrast Design's standard consultancy rates in place from time to time. No work will be undertaken without the prior written consent of the Customer.
5.8 If payment of any Fees is not made in full by the Customer by the due date for payment under the terms of this Agreement, Contrast Design may at its discretion, without prejudice to its other rights and remedies:
5.8.1 charge interest on any overdue amounts at the rate of 5% per annum above Natwest plc base rate for the time being, calculated from the date of the invoice to the date actual payment is received;
5.8.2 suspend the provision of the Services to the Customer until such time as all overdue amounts (including any interest due) are paid in full.
5.8.3 suspend entitlements of any amounts due under the SLA.
5.9 Contrast Design may charge the Customer administration fees in respect of any cheques and direct debits returned unpaid by the Customer's bank and any credit card payments returned unpaid.
5.10 All amounts due under this Agreement to be paid by the Customer to Contrast Design shall be paid in full without any deduction or withholding other than that required by law in respect of withholding or deduction of tax and the Customer shall not be entitled to assert any credit set-off or counterclaim against Contrast Design in order to justify withholding payment of any such amount in whole or in part.
5.11 Contrast Design may at any time require the Customer to issue a deposit or other form of security acceptable to Contrast Design if:
5.11.1 the Customer's financial circumstance or payment history is or becomes unacceptable to Contrast Design;
5.11.2 there is a material change in the Customer's actual or anticipated usage of the Services which results or, in Contrast Design’s sole opinion, may result in an increased risk to Contrast Design of the Fees not being paid by the Customer.
Upon receipt of a written request for security from Contrast Design, the Customer shall have 5 Working Days to provide such security and, if the Customer fails to comply with such request in that time period, Contrast Design may, at its sole discretion, immediately refuse to accept any further Order Forms and /or suspend the delivery of Services and/or terminate this Agreement without further notice and without refund to the Customer of any payments received to date.
6.1 Each party (the “receiving party”) shall hold and keep confidential all Confidential Information of the other party (the “disclosing party”) during the Term and thereafter, and shall not disclose any such Confidential Information to any third party without the express written permission of the disclosing party. Without limitation, the terms of any SLA entered into pursuant to this Agreement shall be the Confidential Information of Contrast Design.
6.2 Nothing in this Clause 6 shall prevent the receiving party from disclosing:
6.2.1 any Confidential Information of the disclosing party to any Group Company, consultant, subcontractor or other person provided that such disclosure is reasonably necessary for the purposes of this Agreement and that the receiving party has ensured that the recipients are made aware of and comply with the provisions of this Clause 6 in relation to such Confidential Information;
6.2.2 any Confidential Information which is or becomes public knowledge other than by a breach of this Clause 6;
6.2.3 any Confidential Information which must be disclosed to any governmental or regulatory body or for any legal or judicial proceedings.
6.3 The Customer acknowledges that any Confidential Information obtained from or relating to Contrast Design or any Contrast Design Group Company by the Customer in the course of negotiating or in the performance of this Agreement is and shall remain the property of Contrast Design or the relevant Group Company, as applicable.
6.4 Notwithstanding the provisions of this Clause 6, the Customer hereby agrees that Contrast Design may refer to the Customer, by company or trading name, and to the existence of this Agreement in any marketing or promotional materials of Contrast Design or any Contrast Design Group Company (including the Contrast Design Website).
7. Ownership and Intellectual Property Rights
7.1 All right, title and interest to and all Intellectual Property Rights in the Service Deliverables remains with Contrast Design, the Contrast Design Group Companies and/or Contrast Design’s suppliers and licensors. The Customer shall not do, or omit to do, anything which may jeopardise, limit or interfere in any manner with Contrast Design’s rights (or the rights of its Group Companies, suppliers and/or licensors) in the Service Deliverables.
7.2 Without prejudice to Clause 7.1, where in the course of the provision of the Services, Contrast Design provides any Service Deliverables which are owned or licensed by any third party (which shall include any Contrast Design Group Company) or in which any Intellectual Property Rights are vested in a third party, the Customer shall comply in full with all licence or other agreements applicable to the use of such third party Service Deliverables (as may be amended from time to time).
7.3 If any Contrast Design proprietary software is provided by Contrast Design to Customer as part of the Services, Contrast Design hereby grants a personal, non-transferable, non-exclusive licence for the Term to the Customer to use such software solely for the purposes of the receipt of use of the Services under this Agreement. The Customer agrees to comply with any terms and conditions governing the use of such software provided to it by Contrast Design from time to time.
8. Term and Termination
8.1 Subject to this clause 8, each of the Services will commence on the Services Commencement Date and shall continue for the Initial Period. At the end of the Initial Period, each Service will be automatically renewed for the Renewal Period, and thereafter for consecutive Renewal Periods, unless or until:
8.1.1 such Services are terminated pursuant to clause 8.2 of this Agreement or under the Specific Terms; or
8.1.2 this Agreement is terminated, whichever is earlier.
8.2 Both Contrast Design and the Customer may terminate the provision of any of the Services at the end of the Initial Period or any Renewal Period for such Services by providing not less than the Minimum Written Notice to the other party prior to the expiry of the Initial Period or the relevant Renewal Period (as the case may be).
8.3 Contrast Design may terminate this Agreement or the provision of any of the Services under this Agreement at any time immediately upon written notice to the Customer if:
8.3.1 the Customer is in material breach of this Agreement which is capable of remedy, and has failed to remedy such breach within 15 days of a written request from Contrast Design to do so. Any failure by the Customer to pay any sum due under this Agreement by the due date for payment shall, without limitation, be a material breach of this Agreement which is capable of remedy for the purposes of this Clause 8.3.1;
8.3.2 the Customer is in material breach of this Agreement which is incapable of remedy. A breach of Clauses 4, 6 or 7 by the Customer shall, without limitation, be a material breach of this Agreement which is incapable of remedy for the purposes of this Clause 8.3.2;
8.3.3 it becomes unlawful for Contrast Design (or any other third party supporting the Services) to continue to provide the Services, or any other third party supporting the Services is required to cease the Services by a competent regulatory authority; or
8.3.4 any other third party supporting the Services ceases to provide its services to Contrast Design or otherwise materially changes the terms on which it provides its services to Contrast Design, beyond the reasonable control of Contrast Design;
8.3.5 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or enters into any composition or arrangement with its creditors generally.
8.4 The Customer may terminate this Agreement at any time immediately upon written notice to Contrast Design if:
8.4.1 Contrast Design is in material breach of this Agreement which is capable of remedy, and has failed to remedy such breach within 15 days of a written request from the Customer to do so; or
8.4.2 Contrast Design is in material breach of this Agreement which is incapable of remedy.
8.5 Either party may terminate this Agreement at any time immediately upon notice in writing to the other party if:
8.5.1 the other party suspends, or threatens to suspend, payment of its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
8.5.2 an order is made or resolution is passed, or a notice is issued convening a meeting for the purpose of passing a resolution, or any analogous proceedings are taken for the winding-up, administration or dissolution (other than a member’s voluntary liquidation solely for the purpose of solvent amalgamation, reconstruction, reorganisation, dissolution, merger or consolidation) of the other party; or
8.5.3 any liquidator, trustee in bankruptcy, receiver, administrative receiver, administrator or similar officer is appointed over, or in respect of, the other party or any part of its business or assets; or
8.5.4 a creditor or encumbrance 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
8.6 Upon termination or expiry of this Agreement or the provision of any of the Services:
8.6.1 the Customer shall immediately stop using the Services and the Customer’s right to use the Services shall immediately cease;
8.6.2 any licences granted by Contrast Design under this Agreement shall terminate; and
8.6.3 the Customer shall remain liable for all outstanding obligations and Fees including any termination or cancellation fees referred to in this Agreement.
8.6.4 all Contrast Design Equipment shall be returned to Contrast Design by the Customer at the Customer’s expense.
8.7 The following clauses shall survive the termination or expiry of this Agreement: 1.1.8, 5, 6, 7, 8, 9, 10, 11, 14 and 15.
9.1 Each party warrants that it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform this Agreement.
9.2 Contrast Design, or any third party suppliers instructed by Contrast Design, shall provide the Services using reasonable care and skill with due regard to applicable Health and Safety guidelines.
9.3 The Services shall be provided in compliance with applicable law and regulation.
9.4 Save as expressly set out in this Agreement, all conditions, warranties and representation, express or implied, statutory or otherwise (including the fitness of the Services for a particular purpose) are hereby excluded.
10.1 The Customer shall indemnify and keep Contrast Design indemnified against any and all costs, claims, losses, liabilities, proceedings and expenses (including legal fees) which are brought or threatened against Contrast Design or a Claranet Group Company by any person, arising out of or in connection with the Customer's:
10.1.1 use of the Services; or
10.1.2 breach of this Agreement.
10.2 Nothing in this Agreement shall exclude or limit either party's liability for
10.2.1 death or personal injury resulting from its negligence or that of its employees, agents or subcontractors;
10.2.2 fraud or fraudulent misrepresentation; and
10.2.3 any other matter for which liability cannot be excluded or limited as a matter of law.
10.3 Subject to Clause 10.2, Contrast Design shall not be liable to the Customer for any:-
10.3.1 indirect, special or consequential loss of damage; or
10.3.2 loss of profits, business opportunities, revenue, anticipated savings; wasted expenditure, goodwill or for any loss or corruption or destruction of data.
10.4 Subject to Clause 10.2 and 10.3, Contrast Design's total aggregate liability in contract, tort or otherwise (including negligence) howsoever arising out of or in connection with this Agreement shall in respect of any one or more incidents not exceed the total Fees received by Contrast Design from the Customer in the calendar year in which the incident giving rise to the liability occurs. For the avoidance of doubt, Contrast Design’s total aggregate liability shall not exceed £1,000,000 in connection with this Agreement.
10.5 The Customer accepts that Contrast Design has no control over the information transmitted to or from the Services and that Contrast Design does not ordinarily examine the use to which Customers put the Services or the nature of the information they are sending or receiving and the Customer agrees that Contrast Design is a mere conduit in accordance with the Electronic Commerce (EC Directive) Regulations 2002. Contrast Design hereby excludes all liability of any kind for the transmission or reception of information of whatever nature through the Services.
10.6 The parties expressly agree that if any limitation or provision contained or expressly referred to in this Clause 10 is held to be invalid under any applicable statute or rule of law, it shall, to that extent, be deemed omitted. If any party becomes liable for loss or damage which would otherwise have been excluded, that liability shall be subject to the other limitations and provisions set out in this Clause 10.
11. Data Protection
11.1 As between the parties the Customer shall own all Intellectual Property Rights in the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
11.2 Subject to the remaining provisions of this Clause 11, in the event of any loss or damage to Customer Data by Contrast Design, the Customer's sole and exclusive remedy shall be for Contrast Design to use reasonable endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Contrast Design where the Customer has elected to purchase such data back-up services. Without limitation to the foregoing, Contrast Design shall not be liable for any loss, destruction, alteration or disclosure of Customer Data caused by any third party not under its direct control.
11.3 If Contrast Design processes any Personal Data (as defined in Data Protection Legislation) on the Customer's behalf when performing its obligations under the Agreement, the parties record their intention that the Customer shall be the Data Controller and Contrast Design shall be a Data Processor of such Personal Data and in any such case each party shall comply with its respective obligations under Data Protection Legislation in respect of any Personal Data related to either party's employees, customers and agents which comes into the receiving party's possession. “Data Protection Legislation” means in EU countries, the EC Directive on the protection of individuals with regard to the processing of personal data, the free movement of such data (95/46/EC) (so long as it remains in effect), Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data (from the date it takes effect), and all local laws or regulations giving effect to that directive and that regulation and any successor legislation relating to the processing of personal data; the Privacy and Electronic Communications Regulations 2003; and in non-EU countries, any similar or equivalent laws, regulations or rules relating to information or data identifying individuals.
11.4 Without limiting the provisions of Clause 11.3:
11.4.1 Contrast Design shall process Customer Data comprising of personal data (“Customer Personal Data”) only in accordance with the terms of the Agreement and any lawful instructions reasonably given by the Customer from time to time;
11.4.2 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the Customer Personal Data or its accidental loss, destruction or damage;
11.4.3 taking into account the nature of the Services, Contrast Design shall assist the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the data subject’s rights under Data Protection Legislation with respect to the Customer Personal Data;
11.4.4 Contrast Design shall not transfer the Customer Personal Data outside the European Economic Area without the Customer's prior written approval;
11.4.5 the Customer shall ensure that the Customer is entitled to transfer the Customer Personal Data to Contrast Design so that Contrast Design may lawfully process the Customer Personal Data in accordance with the Agreement on the Customer's behalf;
11.4.6 Contrast Design shall keep a record of any processing of the Customer Personal Data carried out in the course of the Services together with records of Contrast Design’s compliance with its obligations under Data Protection Legislation with respect to the Customer Personal Data (“Records”);
11.5 Contrast Design shall provide the Customer with reasonable co-operation and assistance in relation to the Customer’s obligations under Data Protection Legislation with respect to the Customer Personal Data, taking into account the nature of the Services and the information available to Contrast Design including:
11.5.1 any request made by a data subject to have access to the Customer Personal Data relating to that person;
11.5.2 the Customer’s obligations to report a security breach to regulators and data subjects and in the Customer’s dealings with Regulators;
11.5.3 providing the Customer and regulators with all information and assistance necessary to demonstrate that the Services comply with Data Protection Legislation.
11.6 The cost of such co-operation and assistance referred to in Clause 11.5 shall be at the Customer’s sole cost unless such co-operation and assistance directly relates to Contrast Design’s breach of its obligations in the Agreement in which case such co-operation and assistance shall be at Contrast Design’s cost.
11.7 If Contrast Design becomes aware of any unauthorised or unlawful processing of any Customer Personal Data or that such data is lost or destroyed or has become damaged, corrupted or unusable Contrast Design shall, without undue delay, on becoming aware of any matter described in this Clause 11.7 notify the Customer.
11.8 The Customer acknowledges that Contrast Design may use Customer Data that does not constitute Personal Data as defined by Data Protection Legislation for Contrast Design's own purposes, including the production of aggregated reports for the purposes of marketing the Services and other commercial purposes.
11.9 Title to the Customer Data and all Intellectual Property Rights in it shall remain the property of the Customer.
11.10 Defined terms used in this Clause 11 shall bear the same meaning as those terms are defined in Data Protection Legislation.
12.1 Any notice required to be given under or in connection with this Agreement shall be in writing and shall be served by delivering it personally, or by sending it by pre-paid first-class post, recorded delivery or registered post, or by fax or email by the Customer to Contrast Design at: Sales Administrator, Contrast Design Limited, 21 Southampton Row, London WC1B 5HA, fax: +44 (0) 20 7197 8092; email sales@Contrast Design.comand by Contrast Design to the Customer to the address, fax number and/or email address set out on the Order Form (or to such other address as either party may have notified to the other party in accordance with this Clause 12.1).
12.2 A notice shall be deemed to have been received:
12.2.1 if delivered personally, at the time of delivery;
12.2.2 in delivered by post, 3 Working Days from the date of posting;
12.2.3 if sent via fax or email, the same Working Day of sending.
13. Force Majeure
13.1 Neither party to this Agreement shall be liable to the other for any delay or non-performance of its obligations under this Agreement to the extent that such delay or non-performance is due to a Force Majeure Event. The Customer may not rely on a Force Majeure Event for any delay or non-performance of any obligation to pay Contrast Design under this Agreement.
13.2 Either party may, during the continuance of any Force Majeure Event, terminate this Agreement by written notice to the other party if a Force Majeure Event occurs that affects all or a substantial part of the Services and which continues for more than 30 Working Days.
14.1 Each party agrees during the term of this Agreement [and for a period of 1 year following its termination], not to solicit or induce any officer, employee, agent or contractor of the other party involved with the provision of the Services or the management of this Agreement or any significant part thereof, to terminate their employment or engagement with the other.
14.2 If a party is found to be in breach of the abovementioned non-solicitation clause, then that party agrees to compensate the other with a one-off payment of whichever is the lesser of (a) £100,000 or (b) the gross annual salary of the officer, employee, agent or contractor of the other so solicited or induced.
15.1 This Agreement (consisting of these Terms and Conditions, the Order Form, the AUP, any Service Description and the SLA) constitutes the entire agreement and understanding between the parties in respect of the matters dealt in it and supersedes any previous agreement between the parties in relation to such matters. Any amendments agreed between the parties will be appended to this Agreement as a separate schedule. In the event of any discrepancy between the terms of the schedule and these standard Terms and Conditions, the terms of the schedule shall prevail.
15.2 The Customer acknowledges that, in entering into this Agreement, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or undertaking (whether negligently or innocently made) except as expressly provided in this Agreement. The only remedy available to the Customer in respect of any such statement, representation, warranty or undertaking shall be for breach of contract under the terms of this Agreement. Nothing in this Clause 15.2 shall operate to exclude any liability for fraud.
15.3 A person who is not party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. This Clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
15.4 A waiver of any right under this Agreement is only effective if it is in writing and signed by the waiving party, and it applies only to the person to whom the waiver is addressed and the circumstances for which it is given.
15.5 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
15.6 If any provision of this Agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
15.7 This Agreement is personal to the Customer and accordingly the Customer shall not assign, or grant any security interest over, any of its rights or obligations under this Agreement without the prior written consent of Contrast Design. Contrast Design retains the right to assign this Agreement to any Group Company at any time.
15.8 This Agreement is subject to the laws of England and Wales and both parties hereby submit to the exclusive jurisdiction of the English Courts.