This Agreement is made on the date indicated in the exchange of e-mails or other correspondence between the Parties BETWEEN the Customer whose details are set out in the exchange of e-mails or other correspondence between the Parties (the "Customer") and FUTURE CREATION whose office is at 1 Oak Hill Park, Hampstead, London, NW3 7LB, UK (the "Supplier").
1. DEFINITIONS
In this Agreement unless the context otherwise requires:- "Agreement" means this Agreement as amended from time to time; "Consequential Loss" means pure economic loss, loss of profit, loss of business and like loss; "Loss of Data" means a loss of or corruption to data or programs; "Standard Charges" means charges to be calculated by the Supplier in accordance with the Supplier's standard rate for time, materials, travel, accommodation and subsistence from time to time prevailing; "Third Party" means a person, partnership, company or any other undertaking not being The Supplier or The Customer. 1.2 Reference in this Agreement to a clause is to a clause of this Agreement. 1.3 The index and the headings in this Agreement shall not affect the construction of this Agreement. 1.4 In this Agreement the use of the plural shall include the singular and the use of the singular shall include the plural and reference to the whole shall include a reference to any part.
2. SCOPE OF WORK AND SERVICES
2.1 The Supplier shall carry out the Services with reasonable skill and care in accordance with the standard reasonably to be expected of persons performing similar services. 2.2 The Supplier shall have no liability to the Customer for any failure to provide the Services to the extent that such failure results from any breach by the Customer of its obligations under this Agreement. Where such breach renders performance of the Services by the Supplier impossible, or not possible without the Supplier incurring additional expense, the Supplier shall be entitled to suspend performance of the Services until such breach is rectified provided that where the Supplier continues to provide the Services in such circumstances it shall be entitled to reimbursement on demand from the Customer of all proper additional expenses incurred in so doing. 2.3 Where the Customer requests the Supplier to provide Services, and the Supplier agrees to perform such Services, the Customer shall pay to the Supplier additional remuneration in accordance with the fixed sum specified on the Supplier's web site. Where no sum is so specified, the Supplier shall levy charges at the daily consultancy rate applicable to the relevant employee or on such other terms and rates as the Parties shall agree at the time. Nevertheless, the Supplier shall, at the Supplier's option, be under no obligation to perform such additional services until the terms of the provision of those Services have been agreed in writing or, at the Supplier's option exchange of e-mail. 2.4 The Supplier will use reasonable endeavours to complete the Services by any dates quoted for completion but any such dates are estimates only and the Supplier will not be liable to the Customer in respect of any failure to complete the Services by such dates. 2.5 The Supplier shall be entitled to employ sub-contractors for the provision of all or part of the Services and to change those sub-contractors. Without limitation where the Supplier uses a Third Party to collect credit card payments from the Customer, the Supplier shall not be responsible for any error, negligence or fraud committed by that Third Party collection agent. 2.6 The Supplier undertakes to remedy promptly and free of charge any faulty work which is demonstrated by the Customer to arise from a failure by the Supplier to perform the Services in accordance with this Agreement and which is reported to the Supplier in writing within sixty (60) days after the performance of those Services. Provided the Supplier then rectifies such faulty work within a reasonable period of time, the Supplier shall have no other liability of any kind in respect of or arising from such failure. If a claim under this clause 2.6 is found upon investigation not to be within the Supplier's responsibility, the Supplier may charge the Customer for all additional costs and expenses incurred by the Supplier in consequence of such investigation. 2.97 Where the Customer provides data to the Supplier in order for the Supplier to perform the Services, the Customer shall ensure that the Supplier will be entitled to use any of that data which is personal data.
3. CHARGES
3.1 The Customer shall pay the Supplier a fee calculated as set out in the exchange of e-mails or other correspondence between the Parties and in addition, will reimburse the Supplier for travel, accommodation, subsistence and other incidental expenses incurred by the Supplier in the provision of the Services at cost, subject to the Supplier producing reasonable supporting evidence. All fees exclude VAT, which shall be paid in addition to the Supplier by the Customer where applicable on production of the appropriate invoice. 3.2 The Supplier may require payment in advance. Where the Supplier agrees to give the Customer credit, the Customer shall pay the Supplier for all Services within thirty (30) days of the date of the invoice therefor. The Supplier may require the Customer to pay in advance for any Service before providing that Service. The Supplier will be entitled to render invoices at any time on or after the Services have been supplied or associated fees and expenses have been incurred. The Customer shall not be entitled to make a set-off or counter-claim or claim a lien in respect of any monies owed by the Customer and shall pay all amounts due to the Supplier pursuant to this Agreement without making a deduction of any kind. 3.3 If the Customer fails to pay all or part of the fees on the due date for payment, the Supplier shall be entitled (without prejudice to any other right or remedy it may have) to :- 3.3.1 withhold the supply of the Services until such payment is made; 3.3.2 suspend the performance of any obligation owed by the Supplier under this Agreement until such payment is made; and/or 3.3.3 require payment in full by the Customer for all the Services before supplying those Services. 3.4 The Supplier reserves the right to charge interest to the Customer on any sums, fees or other charges payable under this Agreement which are not paid on the due date and such interest may be charged (as well after as before a judgment) at the rate of three per cent (3%) per annum above the base rate of Co-operative Bank plc from time to time subsisting: such interest to accrue on a daily basis.
4. CONFIRMATION, LIEN AND SERVICES
4.1 The Supplier shall be entitled, at the Supplier's option, not to commence the Services until the Supplier receives a confirmation from the Customer of the scope of the Services. At the Supplier's option the Customer shall provide such confirmation to the Supplier in writing, by e-mail or in such other manner as the Supplier shall require. 4.2 Such confirmation shall be solely for the benefit of the Supplier, and the Customer shall be equally bound by the provisions of this Agreement in respect of the Services where the Supplier chooses not to obtain such a confirmation. The Customer shall have no cause of action (whether in negligence, breach of contract or otherwise where the Supplier fails to obtain such confirmation). 4.3 Any such confirmation shall be solely for the benefit of the Supplier, and not the Customer. The Customer shall have no cause of action (whether in negligence, breach of contract or otherwise where the Supplier fails to obtain such confirmation). 4.4 Nothing in this Agreement shall require the Supplier to give the Customer credit at any time and the Supplier may require the Customer to pay in advance for any Service. 4.5 The Customer shall have no rights to cancel or change an order a request for the provision of services once given to the Supplier. The Supplier may however, in its absolute discretion, agree to do so.
5. LIMITATION OF LIABILITY
5.1 Subject to the maximum extent permissible in law all conditions and warranties which are to be implied by statute or otherwise by general law into this Agreement or relating to the Services are hereby excluded. 5.2 The Supplier's charges to the Customer are determined on the basis of the exclusions from and limitations of liability contained in this Agreement. The Customer expressly agrees that these exclusions and limitations are reasonable because of (amongst other matters) the likelihood that otherwise the amount of damages awardable to the Customer for a breach by the Supplier of this Agreement may be disproportionately greater than the price of the Services. 5.3 The following provisions in this clause 5 limit the Supplier's entire liability (including any liability for the acts and omissions of its employees, agents or sub-contractors) to the Customer in respect of:- 5.3.1 a breach of the Supplier's contractual obligations; 5.3.2 a tortious act or omission for which the Supplier is liable; 5.3.3 an action arising out of a misrepresentation by or on behalf of the Supplier; arising in connection with the performance or contemplated performance of this Agreement. 5.4 The total liability which the Supplier shall owe to the Customer and in respect of all claims arising pursuant to this Agreement shall not exceed the aggregate monies paid by the Customer to the Supplier pursuant to this Agreement. 5.5 The Supplier shall in no circumstances be liable to the Customer for any Consequential Loss. 5.6 The Supplier shall in no circumstances (whether before or after termination of this Agreement) be liable to the Customer for any Loss of Data and the Customer shall at all times keep adequate back-up copies of the data and programs held or used by or on behalf of the Customer. 5.7 The Customer shall only be entitled to bring a claim against the Supplier where the Customer issues legal proceedings against the Supplier within the period of twenty four (24) months commencing on the date upon which the Customer ought reasonably to have known of its entitlement to bring such a claim. 5.8 Without limitation where the Supplier uses a Third Party to collect credit card payments from the Customer, the Customer accepts that the Supplier shall not be responsible for any error, negligence or fraud committed by that Third Party collection agent; 5.9 Notwithstanding anything to the contrary contained in this Agreement, the Supplier's liability to the Customer for:- 5.9.1 death or personal injury resulting from the negligence of the Supplier, its employees, agents or sub-contractors; 5.9.2 damage suffered by the Customer as a result of a breach by the Supplier of the condition as to title or the warranty as to quiet possession implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; and 5.9.3 damage for which the Supplier is liable to the Customer under Part I of the Consumer Protection Act 1987 shall not be limited save that nothing in this clause 5 shall confer a right or remedy upon the Customer to which the Customer would not otherwise be entitled. 5.10 The Customer shall keep the Supplier fully and effectually indemnified from and against all costs, claims, liabilities and demands relating to or arising from any results produced by the Services (including without limitation any goods supplied as part of or as a result of the Services) or the use to which they may be put (whether by the Customer or a Third Party) and in respect of any loss, damage, expense or injury sustained by any Third Party howsoever caused where such loss, damage, expense or injury arises out of the Services or those goods (including without limitation arising out of a defect in those goods). 5.11 The provisions of this clause 5 shall survive the termination of the whole or a part of this Agreement.
6. Force Majeure
6.1 Neither Party shall be liable to the other party in any manner whatsoever for any failure or delay in performing its obligations under this Agreement (other than an obligation to pay monies) due to force majeure which expression for the purposes of this Agreement means any cause beyond the reasonable control of the party in question including without limitation governmental actions, war, riots, civil commotion, fire, flood, epidemic, labour disputes including labour disputes involving the work force or any part thereof of the party taking advantage of this clause 6, restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials, currency restrictions or Act of God. 6.2 The Party taking advantage of this clause 6 shall at all times use reasonable endeavours to mitigate the severity and adverse effect of the force majeure event.
7. Severability
The illegality, invalidity or unenforceability of any clause or part of this Agreement will not affect the legality, validity or enforceability of the remainder. If any such clause or part is found by any competent court or authority to be illegal, invalid or unenforceable the Parties agree that they will substitute provisions in a form as similar to the offending provisions as is possible without thereby rendering them illegal, invalid or unenforceable.
8. Assignment
The Customer shall not transfer, mortgage or charge this Agreement or any of its rights, benefits or liabilities under this Agreement (or purport to do so) without the previous consent in writing of the Supplier (which consent may be given or withheld at the absolute discretion of the Supplier). The Supplier may assign this Agreement as it sees fit.
9. Amendment and Waiver
9.1 No amendment of this Agreement shall be binding unless recorded in writing or by e-mail. 9.2 The failure of either Party at any time to enforce a provision of this Agreement shall not be deemed a waiver of such provision or of any other provision of this Agreement or of such Party's right thereafter to enforce any provision of this Agreement.
10. Notices
10.1 Any demand, notice or communication required under this Agreement will be served post to the last known address of the Customer and if so served shall be deemed to have been duly served 24 hours after being sent by first class mail.
11. Entire Agreement and Representations
11.1 This Agreement supersedes all previous written or other documents or agreements (written or oral) relating to the subject matter of this Agreement including without limitation all documents proffered by the Customer and relating to the subject matter of this Agreement. 11.2 The Parties acknowledge that in entering into this Agreement they have not relied upon any representations other than those reduced to writing in this Agreement. In particular but without limitation, the Customer acknowledges that the general advice and assistance and prices provided on the Supplier's web pages, while provided in good faith, are subject to constant change and are provided for general information purposes only and accordingly that the Supplier does not accept any liability for any inaccuracy contained therein. The provisions of this clause 11.2 shall not apply to any fraudulent misrepresentation.
12. General
12.1 The copyright and all other intellectual property rights whatsoever in all materials developed under this Agreement including, without limitation, all computer programs used by or accessible by the Customer on the Supplier's web site are and shall remain vested in the Supplier unless expressly agreed in writing otherwise. The Customer shall do all such acts and things as the Supplier may reasonably require for the purpose of preserving or perfecting such vesting. 12.2 In performing the Services, the Supplier is acting as an independent contractor. Nothing in this Agreement shall constitute, or be deemed to constitute, a legal partnership between the Parties nor, except as expressly provided, shall it constitute, or be deemed to constitute, either Party the agent of the other party for any purpose. 12.3 The Supplier undertakes to treat as confidential all information concerning the Customer or those of its customers that is a business secret. This obligation shall not have effect in relation to any such information disclosure of which the Supplier reasonably believes is not confidential or which comes into the public domain otherwise than by the unauthorised disclosure of the Supplier. 12.4 The provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply to this contract and this contract shall not confer any right on a Third Party under that Act or otherwise. 12.5 The Customers statutory rights are not affected by this contract.
13. Law and Arbitration
13.1 The formation, construction, performance, validity and all aspects whatsoever of this Agreement shall be governed by English Law. The Parties hereby submit to the non-exclusive jurisdiction of the English courts.