Spencer Cobby Commercial Photography – Standard Terms of Business  

Dated      30/09/2022

Table Of Contents

1. Interpretation 1

2. Basis of contract 2

3. Supply of Services 3

4. Booking 3

5. Customer’s obligations 3

6. Charges and payment 4

7. Intellectual property rights 5

8. Copyright Licence in Photographs 6

9. Data protection 12

10. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE. 12

11. Termination 14

12. Consequences of termination 15

13. General 15

THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 10 (LIMITATION OF LIABILITY).

  1. Interpretation

The following definitions and rules of interpretation apply in these Terms.

  1. Definitions:

Business Day means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Booking means any booking where we must be in physical presence for the provision of the Services.

Charges means the charges payable by you for the supply of the Services in accordance with clause 6.

Commencement Date has the meaning given in clause 2.2.

Contract means the contract between us and you for the supply of Services in accordance with these Terms and the Service Particulars, and any licencing terms.

Customer means you as the business who purchases Services from us.

Customer Default has the meaning set out in clause 5.2.

Deliverables means the photographs and other media or materials set out in the Service Particulars.

Intellectual Property Rights means patents, utility models, rights to inventions, copyright (in photographs or otherwise – ‘Copyright’) and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Services means the photography Services, including the Deliverables, supplied by us to you as set out in the Service Particulars.

Service Particulars means the description or specification of the Services provided in the document titled ‘Service Particulars’ that accompanied these Terms.

Spencer Cobby Photography means Spencer Cobby Photography Limited registered in England and Wales with company number 14385650 and whose registered office is at: Marlow & Co Woodbury Business Park, Woodbury, Exeter, Devon, United Kingdom, EX5 1AY. Spencer Cobby Photography Services will be known as “we”, “us” or “our” throughout these Terms. 

Order means your order for Services as set out in the Service Particulars.

Our Materials has the meaning set out in clause 5.1(g).

  1. Person means a natural person, corporate or unincorporated body (whether or not having separate legal personality). A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
  2. Interpretation:
    1. Unless expressly provided otherwise in this Contract, a reference to legislation or a legislative provision:
      1. is a reference to it as amended, extended or re-enacted from time to time; and
      2. shall include all subordinate legislation made from time to time under that legislation or legislative provision.  
    2. Any words following the Terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those Terms.
    3. A reference to writing or written includes email and other electronic text in a lasting electronic form. 
  1. Basis of contract
    1. The Order constitutes an offer by you to purchase Services in accordance with this Contract
    2. You must confirm your Order by your acceptance in writing of the Service Particulars – at which point and on which date the Contract shall come into existence (Commencement Date).
    3. Any samples, drawings, descriptive matter or advertising issued by us, and any descriptions or illustrations contained in our 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.
    4. This Contract applies to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
    5. Any quotation given by us shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
  2. Supply of Services
    1. We shall supply the Services to you in accordance with the Service Particulars in all material respects.
    2. We shall use all reasonable endeavours to meet any performance dates specified in the Service Particulars, but unless speed premiums are applied as guaranteeing a timescale in the Service Particulars, any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
    3. We reserve the right to amend the Service Particulars if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and we shall notify you in any such event.
    4. We warrant to you that the Services will be provided using reasonable care and skill.
  3. Booking
    1. All Bookings for the provision of the Services, where we must be present, shall be confirmed in writing by us in the Service Particulars or as otherwise agreed.
    2. We reserve the right to cancel or arrange an alternative date for a Booking.  In such circumstances, we will endeavour to provide notice of cancellation or change to you. In the event of cancellation, you will be entitled to a full refund of the fees, but we shall not be liable for any other loss or expense arising as further detailed in clause 10 (limitation of liability).
    3. You may cancel a Booking by notifying us in writing by acknowledged email or by recorded delivery as soon as reasonably practicable. You shall also be deemed to have cancelled the Booking if you do not attend or facilitate our attendance. We reserve the right to charge you a cancellation fee of 100% for cancellations within 1 business day of the Booking or 75% for cancellations within 5 business days or 50% for cancellations within 10 business days of the Booking. 
    4. We will endeavour to reschedule the session in the event that you do not attend, but you will still be liable for a cancellation fee as per clause 4.3.
  4. Customer’s obligations
    1. The Customer shall:
      1. ensure that the Terms of the Order and any information it provides is complete and accurate;
      2. co-operate with us in all matters relating to the Services;
      3. provide us, its employees, agents, consultants and subcontractors, with access to its premises, office accommodation and other facilities as reasonably required by us;
      4. provide us with such information and materials as we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
      5. prepare any premises for the supply of the Services;
      6. obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
      7. keep all materials, equipment, documents and other property of ours at your premises in safe custody at your own risk, maintain our Materials in good condition until returned to us, and not dispose of or use our Materials other than in accordance with our written instructions or authorisation; and
      8. comply with any additional obligations as set out in the Service Particulars 
      9. not use the Deliverables for any purpose not authorised by us in writing unless all sums due have been settled in full in relation to those Deliverables.
    2. If our performance of any of our obligations under the Contract is prevented or delayed by any act or omission by you or failure by you to perform any relevant obligation (Customer Default):
      1. without limiting or affecting any other right or remedy available to us, we shall have the right to suspend performance of the Services until you remedy your Default, and to rely on your Default to relieve us from the performance of any of our obligations in each case to the extent your Default prevents or delays our performance of any of our obligations;
      2. we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of our obligations as set out in this clause 5.2; and
      3. you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from your Default.
  5. Charges and payment
    1. The Charges for the Services shall be calculated per the Service Particulars and:
      1. The Services being provided between the hours of 9.00 am to 5.00 pm worked on Business Days;
      2. an entitlement to charge an overtime rate of 50% of the standard fee rate on a pro-rata basis for each part day or for any time worked on Bookings outside the hours referred to in clause 6.1(a); and
      3. an entitlement to charge you for any expenses reasonably incurred by the individuals whom engage us in connection with the Services including travelling expenses to any destination beyond a 10-mile radius of Exeter city centre (at £0.45 per mile), hotel costs, equipment hire, subsistence and any associated expenses, and for the cost of Services provided by third parties and required by us for the performance of the Services, and for the cost of any materials.
    2. For any ongoing charges, we reserve the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.
    3. We shall invoice you for any up-front costs per the Service Particulars and on completion of the Services (and in accordance with the Terms of any Intellectual Property licence). 
    4. The Customer shall pay each invoice submitted by us:
      1. within 7 days of the date of the invoice; and
      2. in full and in cleared funds to a bank account nominated in writing by us, and

time for payment shall be of the essence of the Contract.

  1. All amounts payable by you under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by us to you, you shall, on receipt of a valid VAT invoice from us, pay to us 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.
  2. If you fail to make a payment due to us under the Contract by the due date, then, without limiting our remedies under clause 11, you shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
  3. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
  1. Intellectual property rights
    1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by you) shall be owned by us.
    2. We grant to you, or shall procure the direct grant to you of, a non-exclusive licence on the terms set out in clause 8 and the Service Particulars (excluding materials provided by you) for the purpose of receiving and using the Services and the Deliverables in your business.
    3. The Customer grants us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you to us for the term of the Contract for the purpose of providing the Services to you.
  2. COPYRIGHT LICENCE IN PHOTOGRAPHS
    1. Spencer Cobby is the Licensor (Licensor) and copyright holder in the Deliverables and grants to the client, as Licensee (Licensee), a non-exclusive licence to use, reproduce and modify (New Works) the Deliverables in a specific part of their business (Permitted Use) in the permitted territory (Territory) under the Terms set out in these Terms and the Service Particulars. 
    2. The Terms of this licence shall be binding on, and enure to the benefit of, the parties to the Contract and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
    3. The Licensee shall reproduce the Deliverables without any substantial alteration or amendment and shall comply with any reasonable directions notified to it in writing by the Licensor to ensure the satisfactory depiction of the Deliverables, including reasonable directions as to the colour, size or position, or any other reasonable specifications, standards or directions. Any modifications to produce New Work will only be granted in writing with the extent of the modifications permitted. 
    4. The Licensee acknowledges and agrees that all copyright and rights in the nature of copyright subsisting in any part of the world in any New Works shall vest in the Licensor and hereby assigns to the Licensor absolutely the entire copyright and all other rights in the nature of copyright subsisting in any New Works, and all other rights of whatever nature, whether now known or created in the future, to which the Licensee may be entitled by virtue of the laws in force in any part of the world in such New Works, in each case for the whole term including any renewals, reversions, revivals and extensions.
    5. If so instructed by the Licensor, the Licensee shall procure that every Deliverable published in any format is marked with a notice in the following terms, which notice, on the Deliverable, shall appear below the photograph unless otherwise specified by the Licensor in writing:

‘© Copyright Spencer Cobby [YEAR] reproduced by [LICENSEE]’

  1. The Licensee shall promptly provide the Licensor with copies of all communications relating to the Copyright or the Deliverable with any regulatory, industry or other authority.
  2. The Licensee shall, upon the Licensor’s request, provide the Licensor with details of any complaints it has received relating to the Deliverable together with reports on the manner in which such complaints are being, or have been, dealt with and shall comply with any reasonable directions given by the Licensor in respect thereof.
  3. If the Licensee intends to use the Deliverables in any way other than as set out in the Service Particulars (or otherwise agreed in writing), at the Licensee’s own expense at least one month before publication of the Deliverables (including New Works) under this Contract provide an accurate sample of how and where the Deliverables will be displayed (Publication Plan) to the Licensor for the Licensor’s prior written approval (such approval to be at the sole and absolute discretion of the Licensor. The Licensor shall use their reasonable endeavours to notify the Licensee in writing within 14 days whether approval is given under paragraph 8.3 or shall notify the Licensee in writing of the details of any modifications which the Licensor may reasonably require to ensure that the Publication Plan is to the Licensor’s satisfaction, including any modifications reasonably required.
  4. Failure by the Licensor to notify the Licensee of approval within the 14-day period specified in Clause 8.8 shall not be deemed to be an approval.
  5. The Licensee shall within 14 days of receiving notification of any modifications reasonably required to the Publication Plan by the Licensor pursuant to paragraph 8.8 make those modifications and provide a revised Publication Plan to the Licensor for final written approval (such approval not to be unreasonably withheld); and if the Licensor does not provide such final approval, make any further modifications which the Licensor may reasonably require to ensure that the modifications the Licensor specified under paragraph 8.8 have been made to the Licensor’s satisfaction.
  6. The Licensee shall not alter or amend the Deliverables once approved by the Licensor (including by making alterations or amendments pursuant to paragraph 8.10) without obtaining the prior written approval of the Licensor in respect of the proposed revised Publication Plan. 
  7. Where the Licensee has granted any sub-licence pursuant to paragraph 8.34, the Licensee shall include payments in respect of all sales carried out by or on behalf of the sub-licensee, and shall include records of such activities in the records it keeps and statements it submits pursuant to clause 8.18.
  8. All royalties and other sums payable under this Contract shall be paid free and clear of all deductions and withholdings unless the deduction or withholding is required by law. If any deduction or withholding is required by law the Licensee shall pay to the Licensor such sum as will, after the deduction or withholding has been made, leave the Licensor with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding.
  9. All royalties and other sums payable under this Contract shall be paid in sterling to the credit of a bank account to be designated in writing by the Licensor.
  10. Royalties payable under this Contract shall be paid within 30 days of the end of each successive period specified in the Service Particulars, and if the local currency of the Licensee is not already in sterling (in which such royalties arise) when converting into sterling, the rate of exchange to be applied shall be the rate of exchange applied by the London bankers to the Licensor for the purchase of sterling with such foreign currency as at the close of business on the date when the relevant payment first becomes due.
  11. In the event of any delay in paying any sum due under this Contract by the due date, the Licensee shall pay to the Licensor the late interest charges in clause 6.6 and an amount equal to any penalties incurred by the Licensor as a direct result of the delay.
  12. At the same time as payment of royalties falls due, the Licensee shall submit or cause to be submitted to the Licensor a statement in writing recording the calculation of such royalties payable and in particular:

(a) the Quarterly Period for which the royalties were calculated;

(b) the number of units of any Deliverable sold during the Quarterly Period;

(c) the Sub-licence fee of each Deliverable sold during the Quarterly Period;

(d) the amount of royalties due and payable;

(e) the amount of any withholding or other income taxes deductible or due to be deducted from the amount of royalties due and payable; and

(f) any other particulars the Licensor may reasonably require.

  1. The Licensee shall keep proper records and books of account showing the description and price of the units of the sub-licenced Deliverables sold. Such records and books shall be kept separate from any records and books not relating solely to the Deliverable and be open from 9.00 am to 5.00 pm on Business Days to inspection and audit by the Licensor (or its authorised representative), who shall be entitled to take copies of or extracts from the same. If such inspection or audit should reveal a discrepancy in the royalties paid from those payable under this Contract, the Licensee shall immediately make up the shortfall and reimburse the Licensor in respect of any professional charges incurred for such audit or inspection. Such right of inspection of the Licensor shall remain in effect for a period of one year after the termination of this Contract.
  2. The provisions of clauses 8.15 to 8.18 shall remain in effect notwithstanding termination or expiry of this Contract until the settlement of all subsisting claims by the Licensor.
  3. The Licensee shall immediately notify the Licensor in writing giving full particulars if any of the following matters come to its attention:

(a) any actual, suspected or threatened infringement of the Copyright;

(b) any claim made or threatened that the Deliverables infringe the rights of any third party; or

(c) any other form of attack, charge or claim to which the Copyright may be subject.

  1. In respect of any of the matters listed in clause 8.20:

(a) the Licensor shall, at their absolute discretion, decide what action to take, if any;

(b) the Licensor shall have exclusive control over, and conduct of, all claims and proceedings;

(c) the Licensee shall not make any admissions other than to the Licensor and shall provide the Licensor with all assistance that the Licensor may reasonably require in the conduct of any claims or proceedings; and

(d) the Licensor shall bear the cost of any proceedings and shall be entitled to retain all sums recovered in any action for the Licensor’s own account.

  1. The provisions of sections 101 and 101A of the Copyright, Designs and Patents Act 1988 (or equivalent legislation in any jurisdiction) are expressly excluded.
  2. The Licensor warrants that:

(a) the Licensor is the sole legal and beneficial owner of, and owns all the rights and interests in, the Copyright;

(b) the Licensor has not licensed or assigned the Copyright; and

(c) the Deliverable is the Licensor’s original work and has not been copied wholly or substantially from any other source.

  1. The Licensor, being the sole author of the Deliverable, asserts the Licensor’s moral right under Chapter 4 of the Copyright, Designs and Patents Act 1988 to be identified as the author of the Deliverable.
  2. To the fullest extent permitted by law, the Licensor shall not be liable to the Licensee for any costs, expenses, loss or damage (whether direct, indirect or consequential, and whether economic or other) arising from the Licensee’s exercise of the rights granted to it under this Contract.
  3. The Licensee shall indemnify the Licensor against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Licensor arising out of or in connection with:

(a) the Licensee’s exercise of its rights granted under this Contract;

(b) the Licensee’s breach or negligent performance or non-performance of this Contract;

(c) the enforcement of this Contract;

(d) any claim made against the Licensor by a third party for death, personal injury or damage to property arising out of or in connection with defective Deliverables, to the extent that the defect in the Deliverables is attributable to the acts or omissions of the Licensee, its employees, agents, sub-licensees or subcontractors.

  1. This indemnity shall apply whether or not the Licensor has been negligent or at fault.
  2. If any third party makes a claim, or notifies an intention to make a claim, against the Licensor which may reasonably be considered likely to give rise to a liability under this indemnity (Claim), the Licensor shall:

(a) as soon as reasonably practicable, give written notice of the Claim to the Licensee, specifying the nature of the Claim in reasonable detail;

(b) not make any admission of liability, contract or compromise in relation to the Claim without the prior written consent of the Licensee (such consent not to be unreasonably conditioned, withheld or delayed), provided that the Licensor may settle the Claim (after giving prior written notice of the Terms of settlement (to the extent legally possible) to the Licensee, but without obtaining the Licensee’s consent) if the Licensor reasonably believes that failure to settle the Claim would be prejudicial to it in any material respect;

(c) give the Licensee and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Licensor, so as to enable the Licensee and its professional advisers to examine them and to take copies (at the Licensee’s expense) for the purpose of assessing the Claim; and

(d) subject to the Licensee providing security to the Licensor to the Licensor’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses that may be incurred, take such action as the Licensee may reasonably request to avoid, dispute, compromise or defend the Claim.

  1. If a payment due from the Licensee under this clause is subject to tax (whether by way of direct assessment or withholding at its source), the Licensor shall be entitled to receive from the Licensee such amounts as shall ensure that the net receipt, after tax, to the Licensor in respect of the payment is the same as it would have been were the payment not subject to tax.
  2. The Licensee shall only make use of the Copyright for the purposes authorised in this Contract and comply with all regulations and practices in force or use in the Territory to safeguard the Licensor’s rights in the Copyright.
  3. The Licensee shall not do or omit to do anything to diminish the rights of the Licensor in the Copyright or the Deliverable, nor assist any other person to do so, either directly or indirectly.
  4. The Licensee acknowledges and agrees that the exercise of the licence granted to the Licensee under this Contract is subject to all applicable laws, enactments, regulations and other similar instruments in the Territory, and the Licensee understands and agrees that it shall at all times be solely liable and responsible for such due observance and performance.
  5. The Licensee shall have the right to grant to any person a sub-licence of any of its rights under this Contract provided that:

(a) the Licensee obtains the prior written consent of the Licensor (such consent not to be unreasonably withheld);

(b) the Licensee shall not sub-licence the Deliverables outside the permitted Territory. 

(c) the Licensee shall ensure that the Terms of any sub-licence are in writing and are substantially the same as the Terms of this Contract (except that the sub-licensee shall not have the right to sub-licence its rights) and the Licensee shall provide the Licensor with a copy of the sub-licence on request;

(d) all sub-licences granted shall terminate automatically on termination or expiry of this Contract;

(e) the Licensee shall be liable for all acts and omissions of any sub-licensee and shall indemnify the Licensor against all costs, expenses, claims, loss or damage incurred or suffered by the Licensor, or for which the Licensor may become liable (whether direct, indirect or consequential and including any economic loss or other loss of profits, business or goodwill), arising out of any act or omission of any sub-licensee. Any claim under the indemnity given in this clause must be made under the procedure described in paragraph 8.26 to 8.28 shall apply mutatis mutandis to this clause. 

  1. Subject to paragraph 8.30 and 8.31, the Licensee shall not assign, transfer, mortgage, charge, sub-license, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Contract without the prior written consent of the Licensor (such consent not to be unreasonably withheld or delayed).
  2. The Licensor may at any time assign, transfer, mortgage, charge or deal in any other manner with any or all of its rights and / or obligations under this Contract, provided that the Licensor gives prior written notice to the Licensee.
  3. The Licensor may subcontract or delegate in any manner any or all of its obligations under this Contract to any third party, provided that it gives prior written notice of such subcontract or delegation to the Licensee.
  4. The Licensee shall, at the Licensor’s request, execute any contracts or other instruments (including any supplement or amendment to this Contract) which may be required in order to give effect to or perfect any assignment, transfer, mortgage, charge or other dealing referred to in clause 8.35. 
  5. The duration of the licence and the renewal shall be as set out in the Service Particulars. 
  6. On expiry or termination of this Contract for any reason and subject to any express provisions set out elsewhere in this Contract:

a) all outstanding sums payable by the Licensee to the Licensor shall immediately become due and payable;

b) all rights and licences granted pursuant to this Contract shall cease;

c) the Licensee shall cease to make any use of the Copyright save as set out in this clause 8.39;

d) the Licensee shall return promptly to the Licensor at the Licensee’s expense all records and copies of any information of a confidential nature communicated to it by the Licensor, either preparatory to, or as a result of, this Contract, to the extent such material remains confidential; and

e) within 14 days after the date of termination the Licensee shall promptly destroy or, if the Licensor shall so elect, deliver, at the Licensee’s expense, to the Licensor or any other person designated by the Licensor, all Deliverables. 

  1. Any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Contract shall remain in full force and effect.
  1. Data protection
    1. We will process any personal data in relation to you, limited to directors, employees, agents and contractors of yours, in accordance with our privacy policy, which can be found on our website.
    2. If required by law, we will seek the acceptance in writing to a release form from certain data subjects (or their authorised representatives) for photographs containing children or members of the public. 
  2. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
    1. We have obtained  the following Insurance Policies: 

a) professional indemnity insurance cover with a limit of £500,000;

b) employer’s liability insurance cover with a limit of £5,000,000; and

c) public and products liability insurance cover with a limit of £5,000,000.

  1. Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
  2. Nothing in this clause 10 shall limit your payment obligations under the Contract.
  3. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
    1. death or personal injury caused by negligence;
    2. fraud or fraudulent misrepresentation; and
    3. breach of the Terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
  4. Subject to clause 10.2 (No limitation in respect of deliberate default), and clause 10.4 (Liabilities which cannot legally be limited), our total liability to you for all loss or damage shall not exceed £5,000, 000.
  5. The caps on our liabilities shall be reduced by:
    1. payment of an uncapped liability;
    2. amounts awarded by a court or arbitrator, using their procedural or statutory powers in respect of costs of proceedings or interest for late payment.
  6. Subject to clause 10.2 (No limitation in respect of deliberate default), clause 10.3 (No limitation of customer’s payment obligations) and clause 10.4 (Liabilities which cannot legally be limited), this clause 10.7 sets out the types of loss that are wholly excluded:
    1. loss of profits.
    2. loss of sales or business.
    3. loss of contracts.
    4. loss of anticipated savings.
    5. loss of use or corruption of software, data or information.
    6. loss of or damage to goodwill; and
    7. indirect or consequential loss.
  7. We have given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the Terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
  8. Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of the event having occurred its having grounds to make a claim in respect of the event, and shall expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
  9. This clause 10 shall survive termination of the Contract.
  1. Termination
    1. Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party one months’ written notice.
    2. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
      1. 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;
      2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
      3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
      4. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
    3. Without affecting any other right or remedy available to us, we may terminate the Contract with immediate effect by giving written notice to you if you fail to pay any amount due under the Contract on the due date for payment.
    4. Without affecting any other right or remedy available to us, we may suspend the supply of Services under the Contract or any other contract between you and us if:
      1. you fail to pay any amount due under the Contract on the due date for payment;
      2. you become subject to any of the events listed in clause 11.2(c) or clause 11.2(d), or us reasonably believes that you is about to become subject to any of them; and
      3. we reasonably believe that you are about to become subject to any of the events listed in clause 11.2(b).
  2. Consequences of termination
    1. On termination or expiry of the Contract:
      1. you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;
      2. if the contract has been terminated early for reasons other than our default, you shall become liable for 50% of the value of the Services we were unable to provide.
      3. you shall return all of our Materials and any Deliverables which have not been fully paid for. If you fail to do so, then we may enter your premises and take possession of them. Until they have been returned, you shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
    2. Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, 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.
    3. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
  3. General
    1. Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
    2. Assignment and other dealings.
      1. We may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
      2. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of us.
    3. Confidentiality.
      1. Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 13.3(b).
      2. Each party may disclose the other party’s confidential information:
        1. to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 13.3; and
        2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
      3. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
    4. Entire Contract.
      1. The Contract constitutes the entire Contract between the parties and supersedes and extinguishes all previous contracts, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
      2. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
      3. Nothing in this clause shall limit or exclude any liability for fraud.
    5. Variation. Except as set out in these Terms, no variation of the Contract shall be effective unless it is agreed between the parties (or their authorised representatives) in writing.
    6. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
    7. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Contract. If any provision or part-provision of this Contract deleted under this clause 13.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
    8. Notices.
      1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified by the parties.
      2. Any notice or communication shall be deemed to have been received:
        1. if delivered by hand, at the time the notice is left at the proper address;
        2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
        3. if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 12.8(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
      3. This clause 13.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
    9. Third party rights.
      1. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
      2. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
    10. Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
    11. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.