The definitions and rules of interpretation in this clause apply in these terms and conditions (Conditions)
Annual Charges: the charges payable by the Customer for Annual Services.
Annual Services: those Services which have been ordered by the Customer on the Order Form which are charged on an annual basis.
Confidential Information: all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is identified as confidential at the time of disclosure; or ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
Contract: the Order Form issued by BC and signed by both the Customer and BC and which incorporates these Conditions.
Customer: the person, firm or company who purchases Services from BC.
Customer's Premises: the premises from which the Customer conducts its business.
Customer's Equipment: any equipment, systems, cabling or facilities provided by the Customer and used directly or indirectly in the supply of the Services.
BC: Beyond Colour Limited is a company registered in England and Wales with registered number 3255212 whose registered address is The Fold Yard, Cliftongate Business Park, Wigginton Road, York YO32 2RH
BC's Equipment: any equipment, including tools, systems, cabling or facilities, provided by BC or its subcontractors and used directly or indirectly in the supply of the Services.
BC's Manager: BC's manager for the Services appointed under condition 5.3.
BC's Premises: the premises from which BC conducts its business.
Deliverables: all Documents, products and materials developed by BC in relation to the Contract in any form, including computer programs, websites, email accounts, domain names, designs, photographs, data, printed materials, reports and specifications, video, film rushes, scripts, computer graphics.
Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form including emails.
Fixed Charges: the fixed charges payable by the Customer for Services and Deliverables.
Inappropriate Content: materials which infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights).
In-put Material: all Documents, information and materials provided by the Customer relating to the Services including, computer programs, data, reports, specifications, video, film rushes, scripts and computer graphics.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Item: any Deliverable or Service which has been ordered from BC by the Customer and listed on the Order Form.
Item Completion Sheet: the form issued by BC and signed by the Customer to confirm the Customer's acceptance of those Deliverables and Services which have been provided by BC.
Materials: the content provided to BC by the Customer from time to time for incorporation in the Site.
Monthly Charges: the charges payable by the Customer for Monthly Services.
Monthly Services: those Services which have been ordered by the Customer on the Order Form which are charged on a monthly basis.
Order Form: the form issued by BC which details the Services and Deliverables to be provided by BC to the Customer.
Party: a party to the Contract and Parties shall be construed accordingly.
Personal Data: personal data as defined in the Data Protection Act 1998.
Pre-existing Materials: all Documents, photographs, information and materials provided by BC relating to the Services which existed prior to the commencement of the Contract including computer programs, source code, data, reports and specifications, related documentation , tools, and algorithms.
Print Services: the provision of printed material by BC as ordered by the Customer on the Order Form.
Services: the services to be provided by BC as set out in the Order Form .
Site: the website designed and developed by BC or hosted on BC's server for the Customer under the Contract.
Spam: unsolicited bulk messages sent by electronic messaging systems.
Speculative Work: work undertaken by BC for the Customer before commencement of the Contract.
Standard Hourly rate: the hourly rate charged by BC for the provision of Services as amended from time to time by BC giving not less than 30 days written notice to the Customer.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.1 Condition, schedule and paragraph headings shall not affect the interpretation of these conditions.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.
1.3 Words in the singular shall include the plural and vice versa.
1.4 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.5 A reference to writing or written includes faxes and e-mail.
1.6 Where the words include(s), including or in particular are used in these terms and conditions, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.7 Any obligation in the Contract on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.8 References to conditions are to the Conditions of the Contract.
2.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this Contract.
2.2 BC shall perform the Services with reasonable care and skill.
2.3 This Contract sets out the full extent of BCīs obligations and liabilities in respect of the supply of the Items. All conditions, warranties or other terms concerning the Items which might otherwise be implied into this Contract or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
3. APPLICATION OF CONDITIONS
3.1 These Conditions shall:
(a) apply to and be incorporated into the Contract; and
(b) prevail over any inconsistent terms or conditions contained, or referred to, in the Customer's purchase order, confirmation of order, acceptance of a quotation or specification, or implied by law, trade custom, practice or course of dealing.
3.2 The Customer's acceptance of a quotation for Services and Deliverables by BC, constitutes an offer by the Customer to purchase the Services and Deliverables specified in it on these Conditions. No offer placed by the Customer shall be accepted by BC other than:
(a) by a written Order Form issued by BC and signed by the Customer and BC; or
(b) (if earlier) by BC starting to provide the Services,
when a contract for the supply and purchase of those Services on these Conditions will be established. The Customer's standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern this Contract.
3.3 Quotations are given by BC on the basis that no Contract shall come into existence except in accordance with condition 3.2. Any quotation is valid for a period of 30 days from its date, provided that BC has not previously withdrawn it.
4. COMMENCEMENT AND DURATION
4.1 The Services supplied under the Contract shall be provided by BC to the Customer from the date of signature of the Order Form by the Customer and Supplier.
4.2 The Items supplied under the Contract shall be supplied until completed in accordance with the Item Completion Sheet
4.3 and, after that:
(a) any Monthly Services shall continue to be supplied for a minimum period of one month after which the Contract may be terminated by one of the parties giving to the other not less than 30 days notice, unless the Contract is terminated in accordance with condition 19;
(b) any Annual Services shall continue to be supplied for a minimum period of one year after which the Contract may be terminated by one of the parties giving to the other not less than 30 days notice unless the Contract is terminated in accordance with condition 19.
4.4 Once the Item Completion Sheet has been agreed and signed in accordance with condition 9.2 no amendment shall be made to it except in accordance with condition 7.
5. BC'S OBLIGATIONS
5.1 BC shall use reasonable endeavours to provide the Services, and to deliver the Deliverables to the Customer, in accordance in all material respects with the Order Form.
5.2 BC shall use reasonable endeavours to meet any performance dates specified in the Order Form, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
5.3 BC may appoint BC's Manager in respect of the Contract who shall have authority contractually to bind BC on all matters relating to the Services and Deliverables. BC shall use reasonable endeavours to ensure that the same person acts as BC's Manager throughout the term of the Contract, but may replace him or her from time to time where reasonably necessary in the interests of BC's business.
6. CUSTOMER'S OBLIGATIONS
6.1 The Customer shall:
(a) co-operate with BC in all matters relating to the Services and appoint the Customer's Manager in relation to the Services and Deliverables who shall have the authority contractually to bind the Customer on matters relating to the Services;
(b) provide, in a timely manner, such In-put Material and other information as BC may request and ensure that it is accurate in all material respects;
(c) obtain and maintain all necessary licences and consents including software licences and comply with all relevant legislation in relation to the Services, the use of In-put Material and the use of the Customer's Equipment in relation to BC's Equipment in all cases before the date on which the Services are to start;
(d) be solely responsible for backing-up any data including written content, written documents, digital images, digital audio, animation or digital video material belonging to the Customer and any data belonging to the Customer which is stored on servers by BC;
(e) insure all material supplied to BC to the extent that such material is insured at all times when it is away from the Customer's Premises;
(f) not allow unauthorised copying of materials belonging to BC.
6.2 If BC's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors or employees, BC shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
6.3 The Customer shall be liable to pay to BC, on demand, all reasonable costs, charges or losses sustained or incurred by BC (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to BC confirming such costs, charges and losses to the Customer in writing.
7. CHANGE CONTROL
7.1 If either party requests a change to the scope or execution of the Services, BC shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the change;
(b) any variations to BC's charges arising from the change;
(c) and any other impact of the change on the terms of the Contract.
7.2 Additional charges arising under clause 7.1 above shall be charged in accordance with condition 8.2.
7.3 BC may also charge for its time spent in assessing a request for change in accordance with condition 8.2.
7.4 BC may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.
7.5 BC may also, from time to time and subject to the Customer's prior written consent, which shall not be unreasonably withheld or delayed, change the Services, provided that such changes do not materially affect the nature or quality of the Services and, where practicable, it will give the Customer at least 30 days notice of any change.
7.6 If the Customer wishes BC to proceed with the change, BC has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, and any other relevant terms of the Contract to take account of the change.
8. CHARGES AND PAYMENT
8.1 Condition 8.2 shall apply if BC provides the Services on a time and materials basis. Condition 8.3 shall apply if BC provides the Services for a Fixed Charge. Condition 8.7 shall apply for Monthly Services and Annual Services and condition 8.8 for Print Services. The remainder of this condition 8 shall apply in all cases.
8.2 Where the Services are provided on a time and materials basis:
(a) the charges payable for the Services shall be calculated in accordance with BC's Standard Hourly Rates,
(b) BC's normal hours of business are between 9.00 am and 5.00 pm on weekdays (excluding public holidays);
(c) BC shall be entitled to charge an overtime rate of 200% of the Standard Hourly Rate for any time worked by individuals whom it engages on the Services outside the hours referred to in condition 8.2 (b);
(d) all charges quoted to the Customer shall be exclusive of VAT which BC shall add to its invoices at the appropriate rate; BC shall ensure that every individual whom it engages on the Services completes time sheets recording time spent, and BC shall use such time sheets to calculate the charges covered by each monthly invoice referred to in condition 8.2 (e); and
(e) BC shall invoice the Customer monthly in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this condition.
(f) additional design, development or photographic work caused by delay in receiving the Customer's instructions shall be charged at the Standard Hourly Rate and related expenses shall be charged at cost and will be billed at the time they were incurred.
(g) meetings outside of the Company Premises at the Customer's request will be charged at the Standard Hourly Rate per person including travelling time plus expenses. Such expenses shall include the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom BC engages in connection with the Services.
(h) the cost of any materials and expenses and of any services reasonably and properly provided by third parties and required by BC for the supply of the Services shall be invoiced by BC at cost.
(i) in the event of any delays in the provision of Services under the Contract which have been caused or requested by the Customer and which result in additional costs for the Services, BC shall reserve the right to invoice the client for those additional costs and the value of the Services already supplied up to the date when the delay became known to BC.
8.3 Where the Services are provided for a Fixed Charge, the total price for the Services shall be the amount set out in the Order Form.
8.4 BC may agree to invoice the Customer separately for each Item on the date when it is signed by the Customer on the Item Completion Sheet. Such invoice will include the charges that are then payable with respect to that Item together with expenses, the costs of materials and VAT, where appropriate, calculated as provided in condition 8.1.
8.5 Any fixed Charge contained in the Contract excludes:
(a) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom BC engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by BC for the supply of the Services. Such expenses, materials and third party services shall be invoiced by BC at cost; and
(b) VAT, which BC shall add to its invoices at the appropriate rate.
8.6 The Customer shall pay each invoice submitted to it by BC, in full and in cleared funds, within 14 days of receipt.
8.7 Payments for Monthly Services and Annual Services shall be made by standing order, direct debit, cheque or BACS as agreed between the parties and indicated on the Order Form by the Customer.
8.8 Payment for Print Services shall be due on delivery of the printed material.
8.9 All cheques payable under the Contract shall be payable to Beyond Colour.
8.10 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay BC on the due date, BC may:
(a) charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of HSBC Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and BC may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
(b) suspend all Services until payment has been made in full.
8.11 Time for payment shall be of the essence of the Contract.
8.12 All sums payable to BC under the Contract shall become due immediately on its termination, despite any other provision. This condition 8.12 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
8.13 BC may, without prejudice to any other rights it may have, set off any liability of the Customer to BC against any liability of BC to the Customer.
9. ACCEPTANCE OF ITEMS
9.1 BC will take all reasonable care to check designs, specifications, production proofs and/or samples, and source code, but it takes no responsibility for accuracy of text. Final responsibility rests with the Customer to approve each stage of the Services being provided.
9.2 An Item Completion Sheet will be signed by the Customer to signify that an Item has been accepted as complete and satisfactory. The Customer accepts sole responsibility to comply with condition 9.2 before any further Items will be provided.
9.3 It is the Customer's responsibility to ensure that their requirements are properly checked and that any content of the Items is accurate.
9.4 BC does not accept any liability to Customers for the colour difference between the final view displayed by a computer monitor and the printed version of that image. All colour representations of design concepts submitted for the Customer's appraisal are representative of the final colour and may not be exactly the same colour when viewed digitally on screen. The Customer's attention is drawn to the colour variation which occurs as a result of the use of different computers, monitors, software platforms and printing equipment.
9.5 For photographs and Print Services BC does not accept liability for variation in the colour of photographs or printed material. This can be attributed to those reasons outlined at condition 9.4 above and also to differences in paper and printing equipment.
10.1 Legal and beneficial title to Items shall not pass to the Customer until BC has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Items; and
(b) all other sums which are or which become due to BC from the Customer on any account including sums due to third parties in respect of licensed software or copyright in photographs.
10.2 Title passing to the Customer under Condition 10.1 does not include any title to computer programs, source code, related documentation , tools, data files, and algorithms.
10.3 Until legal and beneficial title has passed to the Customer, the Customer shall:
(a) hold the Items on a fiduciary basis as BC's bailee;
(b) store the Items (at no cost to BC) separately from all other property of the Customer or any third party in such a way as they remain readily identifiable as BC's property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Items.
10.4 The Customer's right to possession of the Items shall terminate immediately if the contract is terminated.
10.5 BC shall be entitled to recover payment for the Items even though ownership of the Items has not passed from BC.
10.6 The Customer grants BC, its agents and employees an irrevocable licence at any time to enter any premises where the Items are or may be stored in order to inspect them, or where the Customer's right to possession has terminated, to recover them.
10.7 Items are at the risk of the Customer from the time of delivery and the Customer shall be responsible for insuring such Items as it possible to insure on BC's behalf for their full price against all risks with a reputable insurer.
10.8 Any equipment or materials hired to the Customer remains the property of BC or its sub-contractors.
10.9 Any Deliverables and In-put material will be kept by BC for a limited period of 1 month after completion of the Contract.
10.10 Subject to Condition 10.9, BC reserves the right to dispose of any Deliverables and In-Put materials unless additional orders are received within a reasonable period of time or further storage time has been agreed in writing with the Customer.
10.11 All Speculative Work is undertaken on the basis that all Intellectual Property rights arising as a result of such work belong to BC.
10.12 No material developed by BC as a result of Speculative Work including designs, logos, marks, names, computer programs, source code, data, reports and specifications, related documentation, tools, and algorithms may be used or further developed by the Customer or any third party without the written agreement and involvement of BC.
10.13 Any material supplied to the Customer by BC while BC was undertaking Speculative Work shall be returned to BC.
11. LIMITATION OF LIABILITY - THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF THIS CONDITION
11.1 This condition 11 set out the entire financial liability of BC (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of the Contract;
(b) any use made by the Customer of the Services, the Deliverables or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract
11.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these Conditions limits or excludes the liability of BC:
(a) for death or personal injury caused by its negligence; or
(b) for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by BC; or
(c) for any liability incurred by the Customer as a result of any breach by BC of the terms implied by section 2 of the Supply of Goods and Services Act 1982 or S12 Sale of Goods Act 1979.
11.4 Subject to condition 11.2 and condition 11.3
(a) BC shall not be liable for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill and/or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) loss of use; or
(viii) loss or corruption of data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) BC's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in any calendar year in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for the Services and Deliverables in that calendar year.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 All Intellectual Property Rights and all other rights in the Pre-existing Materials shall be owned by BC. Subject to condition 12.2, BC hereby grants the Customer a non-exclusive licence of such Intellectual Property Rights to such extent as is necessary to make reasonable use of the Deliverables and Services.
12.2 The Customer acknowledges that, where BC does not own any Pre-Existing Materials, the Customer's use of rights in Pre-existing Materials is conditional on BC obtaining a written licence (or sub-licence) from the relevant licensor on such terms as will entitle BC to license such rights to the Customer.
12.3 Subject to condition 12.5 all Intellectual Property Rights in the Site (including those in the content of the Site and the Site software but excluding those in the In-put Materials) arising in connection with the Contract shall be the property of BC, and BC hereby grants the Customer a non-exclusive licence of such Intellectual Property Rights only for the purpose of operating the Site.
12.4 If the Contract is terminated, any licence granted under condition 12.1 or 12.3 will automatically terminate.
12.5 Subject to condition 12.7, and provided that all charges, costs and expenses have been paid in accordance with condition 8, Intellectual Property Rights subsisting in material which has been specifically designed by BC for the Customer in connection with the Contract, (such as logos, graphic works, designs of websites and web pages and printed materials), and which has been accepted by them in accordance with Condition 9 as the final version shall be assigned to the Customer.
12.6 BC reserves the right to use all or part of any materials which have been assigned to the Customer for the purpose of demonstrating BC's expertise to potential customers.
12.7 The assignment of Intellectual Property Rights in accordance with condition 12.5 above shall not include any such rights in computer programs, source code, related documentation , tools, data files, and algorithms.
12.8 The Customer shall indemnify BC against all damages, losses and expenses arising as a result of any action or claim that the In-put Materials infringe the Intellectual Property Rights of a third party.
12.9 The indemnities in conditions 12.8, 17.4 and 18.3 are subject to the following conditions:
(a) the indemnified party promptly notifies the indemnifier in writing of the claim;
(b) the indemnified party makes no admissions or settlements without the indemnifierīs prior written consent;
(c) the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
(d) the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.
12.10 The indemnities in conditions 12.8, 17.4 and 18.3 may not be invoked to the extent that the action or claim arises out of the indemnifierīs compliance with any designs, specifications or instructions of the indemnified party.
13.1 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
13.2 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
13.3 The obligations set out in this condition 13 shall not apply to Confidential Information that the receiving party can demonstrate:
(a) is or has become publicly known other than through breach of this condition 13; or
(b) was in the possession of the receiving party prior to disclosure by the other party; or
(c) was received by the receiving party from an independent third party who has full right of disclosure; or
(d) was independently developed by the receiving party; or
(e) was required to be disclosed by a governmental authority, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.
13.4 The obligations of confidentiality in this condition 13 shall not be affected by the expiry or termination of this agreement.
14. DATA PROTECTION
14.1 The Customer acknowledges and agrees that details of the Customer's name, address and payment record may be submitted to a credit reference agency, and Personal Data will be processed on behalf of BC in connection with the Services
15.1 The Customer agrees to give BC credit, where appropriate, in all initial press handouts and publicity material and agrees to an announcement of their appointment as a supplier of Services to them.
15.2 The Customer agrees to include the words "Beyond Colour Creative Marketing Agency" on the Site or such other words as shall be agreed between the parties.
15.3 BC will use all reasonable endeavours to promote the Customer's website using links from BC's website, relevant press releases and any other active promotion which BC feels appropriate to the Customer's business.
16. SEARCH ENGINES
16.1 BC accepts no responsibility for any losses to the Customer arising from submission or non-submission of the Site or parts of the Site to search engines, or from the level of search engine optimisation or search engine positioning.
17. ILLEGAL USE OF THE SITE
17.2 If it becomes aware of any allegation that the Site has been used for illegal activities as described in condition 17.1 BC reserves the right to:
(a) immediately cease hosting any Site; and
(b) terminate the Contract; and
(c) BC shall not accept liability for any losses to the Customer which arise from withdrawal of any Services
17.3 If the Contract is terminated in accordance with condition 17.2 (b) above, the Customer shall remain liable for all payments due under the Contract up until the date of termination.
17.4 The Customer shall indemnify BC against all damages, losses and expenses arising as a result of any action or claim that the Site has been used for illegal activities.
18. SITE CONTENT
18.1 BC shall update the Site with materials provided from time to time by the Customer. BC shall grant the Customer access to the Server when appropiate in order to update information held on the Site.
18.2 The Customer acknowledges that BC has no control over any content placed on the Site by visitors and does not purport to monitor the content of the Site. BC reserves the right to remove content from the Site immediately where it reasonably suspects such content is Inappropriate Content. BC shall notify the Customer promptly if it becomes aware of any allegation that any content on the Site may be Inappropriate Content.
18.3 The Customer shall indemnify BC against all damages, losses and expenses arising as a result of any action or claim that the materials constitute Inappropriate Content.
19.1 Subject to conditions 17.2 (b) and 19.2 the Contract shall terminate automatically on completion of delivery of all the Items.
19.2 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
(a) the other party commits a material breach of any of the terms 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 of the breach; or
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
(d) a receiver is appointed of any of the other party's assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
(f) the other party ceases, or threatens to cease, to trade; or
(g) there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001); or
(h) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
19.3 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to BC all of BC's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, BC may submit an invoice, which shall be payable immediately on receipt;
(b) the Customer shall, within a reasonable time, return all of BC's Equipment, Pre-existing Materials and Deliverables. If the Customer fails to do so, then BC may enter the Customer's premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping; and
(c) the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
20. FORCE MAJEURE
BC shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of BC or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
Subject to condition 7 no variation of the Contract shall be valid unless it is in writing and signed by or on behalf of each of the parties.
22.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
22.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
23.1 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
23.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.
23.3 The parties agree, in the circumstances referred to in condition 23.1 and if condition 23.2 does not apply, to attempt to substitute for any invalid, unenforceable or illegal provision a valid, enforceable and legal provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
24. STATUS OF PRE-CONTRACTUAL STATEMENTS
Each of the parties acknowledges and agrees that, in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and conditions or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.
25.1 The Customer shall not, without the prior written consent of BC, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
25.2 BC may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
26. NO PARTNERSHIP OR AGENCY
Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
27. RIGHTS OF THIRD PARTIES
The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
Notice given under the Contract shall be in writing, sent for the attention of the person, and to the address or fax number, given in the Contract (or such other address, fax number or person as the relevant party may notify to the other party) and shall be delivered personally, sent by fax or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition 28 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00 am on the first business day following delivery. To prove service, it is sufficient to prove that the notice was transmitted by fax, to the fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted.
29.1 If any dispute arises out of this agreement, the parties will attempt to settle it by mediation in accordance with the Centre for Dispute Resolution (CEDR) Model Mediation Procedure.
30. GOVERNING LAW AND JURISDICTION
30.1 The Contract and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.
30.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter.