In this Agreement:
“Agreement” means the agreement entered into between the Company and the Client to which these Terms and Conditions apply incorporating the Quote;
“Charges” means the price of the Goods and/or the fee for the Services as set out in the Quote;
“Client” means the Client set out in the Quote;
“Commissioned Materials” means all material (including but not limited to artwork, copy, models, designs, sound recordings and photographs) the creation of which is commissioned by the Company from any third party in the course of providing the Goods or Services;
“Company” means Medicineman Limited (company number 04089038), The Old Truman Brewery, 91 Brick Lane, London EC1 6QL;
“Company Materials” means all material (including but not limited to artwork, copy, models, designs, sound recordings and photographs) created exclusively for the Client by the Company’s directors or employees) in the course of providing the Goods or Services, whether individually, collectively or jointly with the Client and on whatever media;
“Company Existing Works” means all material (including but not limited to artwork, copy, models, designs, sound recordings and photographs) created by the Company other than the Company Materials and which is used in the course of providing the Goods or Services;
“Force Majeure” means any cause preventing the Company from performing any or all of its obligations which arises or is attributable to any act, event, omission or accident beyond the reasonable control of the Company including without limitation industrial dispute, act of God, war or terrorist activity, fire, flood, storm and compliance with any governmental order, rule, regulation or direction coming into force after the date of this Agreement;
“Goods” means the goods to be provided by the Company to the Client set out in the Quote;
“Intellectual Property Rights” means all intellectual property rights, including without limitation patents, trade marks, database rights, rights in designs and copyrights (including rights in computer software) (whether or not any of these rights are registered, and including applications and the right to apply for registration of any such rights) and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world, for the full term of such rights, and any renewals or extensions of them;
“Materials” means the Company Materials, the Commissioned Materials, the Company Existing Works and the Third Party Existing Works;
“Quote” means the quotation for the provision of Goods and/or Services issued by the Company to the Client attached to these Terms and Conditions;
“Services” means the services to be provided by the Company to the Client set out in the Quote;
“Specifications” means any specifications, drawings, process information, patterns, designs or other information or materials which are provided to the Supplier by the Company to enable the Company to supply the Goods and/or Services; and
“Third Party Existing Works” means any material (including but not limited to artwork, copy, models, designs, sound recordings and photographs) protected by Intellectual Property Rights created by a third party other than the Commissioned Materials and which is used in the course of providing the Goods or Services.
2.1 The provision of Goods and/or Services by the Company to the Client shall be subject to these Terms and Conditions and the acceptance of any Quote by the Client for Goods and/or Services shall be deemed full acceptance of these Terms and Conditions.
2.2 These Terms and Conditions are the only terms applicable to this Agreement. All terms and conditions proposed by the Client (even though such terms may be included in a later document; endorsed upon, delivered with or contained in the Client’s acknowledgement or confirmation of order, specification or similar document; and/or purport to exclude or supersede any terms which are inconsistent with them; or which may otherwise be implied by custom or dealing) are hereby excluded. The Client hereby waives irrevocably any right which it may otherwise have to rely on such terms and conditions.
3.1 This Agreement shall commence on the Commencement Date set out in the Quote (if any) or the date on which the Client accepts the Company’s Quote.
3.2 Subject always to earlier termination pursuant to clause 12, this Agreement shall terminate on completion of the provision of the Goods or in relation to the provision of Services the earlier of:
3.2.1 the End Date (if any) set out in the Quote;
3.2.2 the completion of the provision of the Services; or
3.2.3 in the absence of an End Date upon the expiry of not less than one (1) month’s prior written notice from either party to the other.
4.1 All Goods will be delivered to the delivery address notified to the Company by the Client in writing.
4.2 Unless specifically agreed otherwise, the Client shall be responsible for all costs of delivery of the Goods
4.3 Unless expressly agreed in writing by the Company, time is not of the essence as regards any agreed dates for delivery of any Goods or deadlines for the provision of Services and the Company excludes all liability so far as permitted by law for any loss arising as a result of any delay.
4.4 The Company warrants that it will perform the Services with reasonable care and skill and that it will use reasonable endeavours to perform the Services and/or provide the Goods in accordance with the Client’s instructions. The Company provides no other representation or warranty and in particular provides no representation or warranty as to any benefits (including but not limited to any increase in market presence or revenue) which may be obtained by the Client as result of engaging the Company to perform the Services.
4.5 The Company reserves the right in its absolute discretion to refuse to provide the Goods and/or Services in whole or in part in the event it considers any aspect of the Goods and/or the Services to be illegal, offensive, immoral, misrepresentative or misleading.
5.1 Risk in any Goods passes to the Client on delivery to the Client.
5.2 Legal and beneficial ownership of the Goods shall not pass to the Client until the Company has received in full in cash or cleared funds all sums due to it from the Client (including in each case without limitation any interest payable in the event of late payment) in respect of :
5.2.1 the Goods;
5.2.2 any other Goods previously or subsequently supplied by the Company to the Client; and
5.2.3 any other obligation whatsoever owed by the Client to the Company.
5.3 Until ownership of the Goods has passed to the Client in accordance with clause 5.2, the Client shall:
5.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
5.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Client or any third party in such a way that they remain readily identifiable as the Company’s property;
5.3.3 not destroy, deface, remove or obscure any identifying mark or packaging on or relating to the Goods; and
5.3.4 maintain the Goods in a satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Client shall provide the Company with evidence of such insurance.
5.4 Until such times as ownership of the Goods has passed to the Client in accordance with clause 5.2, the Client grants the Company, its agents and employees an irrevocable licence to enter its premises and shall procure the grant of such a licence to enter the premises of any third party where the Goods are or may be stored for the purpose of:
5.4.1 inspecting the Goods at any time; or
5.4.2 where the Client’s right to possession of the Goods has terminated to recover them.
5.5 All sums in respect of the Goods shall forthwith become due and payable to the Company and the Client’s right to possession of the Goods shall immediately terminate on the occurrence of any event set out in clause 12.
6.1 In consideration for the provision of the Goods and/or the Services, the Client shall pay to the Company the Charges plus any applicable taxes and expenses in pounds sterling. The Company reserves the right to require the Client to make an advance payment in respect of costs to be incurred by the Company.
6.2 Unless otherwise agreed in writing, payment of the Charges by the Client shall be made within thirty (30) days of the date of invoice without any set-off, counterclaim or other deduction whatsoever. The Company reserves the right to suspend the Services and/or postpone the delivery of any Goods in the event the Client fails to pay any sum by the due date. The time for payment shall be of the essence of the Agreement.
6.3 If any amount under this Agreement is not paid when due then such amount shall bear interest at a rate of [5]% per annum over the National Westminster Bank’s base rate from time to time from the due date until payment is made in full. The Company shall be entitled to full reimbursement by the Client of all costs and expenses incurred in collecting any overdue sum.
7.1 Subject always to clause 12.3, the Client may by written notice to the Company cancel or amend the provision of the Goods and/or Services in whole or in part [at any time] [on [ ] days written notice].
8.1 Nothing in this Agreement shall limit the Company’s liability for death or personal injury resulting from the Company’s negligence or for fraud.
8.2 The aggregate liability of the Company in respect of any loss or damage suffered by the Client and arising out of or in connection with this Agreement, whether in contract, tort (including negligence) or for breach of statutory duty or in any other way, shall not exceed the amount of the Charges payable by the Client to the Company pursuant to this Agreement.
8.3 The Company shall not be liable in contract, tort (including negligence) or for breach of statutory duty or in any other way for:
8.3.1 any loss arising from or in connection with loss of revenues, profits, contracts or business or failure to realise anticipated savings;
8.3.2 any loss of goodwill or reputation; or
8.3.3 any indirect or consequential losses suffered or incurred by the Client arising out of or in connection with any matter under this Agreement.
8.4 The Client acknowledges and agrees that the limitations contained in this clause 8 are reasonable in all the circumstances.
8.5 The Company will defend the Client against any claims made by a third party that any Company Materials or Company Existing Works infringe that party’s Intellectual Property Rights. The Company will also pay the amount of any resulting adverse final judgment (or settlement to which the Company consents). This is the Client’s exclusive remedy for any such claim. Client must notify the Company promptly in writing of the claim and give the Company sole control over its defence or settlement. Client must also provide the Company with reasonable assistance in defending the claim. The Company will reimburse the Client for reasonable out of pocket expenses that it incurs in providing that assistance.
8.6 The Company shall not have any liability under this clause 8 or otherwise to the extent that any claim or award is based on:
8.6.1 any Specifications, information or any other materials provided to the Company by the Client;
8.6.2 the Client’s use of the Materials after the Company notifies it to discontinue that use due to a third party claim; or
8.6.3 modifications that the Client makes to the Materials. The Client shall fully indemnify the Company against any liability, costs or expenses that the Company suffers as a result of any of these actions.
8.7 The Client may be required by the Company to check and approve Materials from time to time. The Company shall not be responsible for any errors or omissions in such Materials where the Client has expressly or impliedly approved the same. The Company shall not be responsible for checking whether the person approving the Materials on behalf of the Client has actual authority to approve the same. The Client shall bear all costs and expenses (including but not limited to printing costs) arising as a result or any errors or omissions in any Materials approved by the Client.
9.1 All notices, orders or instructions to be served under this Agreement shall be deemed to be properly served if sent by hand or prepaid recorded delivery or registered post or fax to the address of the receiving Party specified in this Agreement or the registered office or principal place of business of the receiving Party and shall be deemed to have been received within 48 hours of posting or 24 hours of transmission if sent by fax to the correct fax number of the addressee.
10.1 Any Specifications which are:
10.1.1 supplied by the Client to the Company; and
10.1.2 any information derived therefrom or otherwise communicated to the Company in connection with this Agreement; shall be and shall remain the property of the Client.
10.2 To the extent that the Specifications contain any material owned or controlled by a third party, the Client shall:
10.2.1 disclose the existence of such material to the Company; and
10.2.2 obtain such licences, assignments or other consents as are required to permit the use of such third party material by the Company.
10.3 Unless agreed otherwise in writing, all Intellectual Property Rights in the Company Materials will belong to and vest in the Company.
10.4 Provided that all obligations of the Client arising from this Agreement (including those relating to payment) have been met, the Company grants the Client a fully paid-up, non-exclusive, non-transferable licence to use the Company Materials, Commissioned Materials, Third Party Existing Works and the Company Existing Works to the extent the Company is able to do so.]
10.5 Unless otherwise agreed in writing, the Client shall be solely responsible for performing all rights clearances and any relevant searches or enquiries for determining whether the Materials are appropriate for use.
11.1 Each party undertakes that it will not at any time use or disclose to any person (except to its professional advisors or as may be required by law or any legal or regulatory authority) any information which is by its nature confidential (including, without limitation, any Specifications, Materials and any other designs, inventions, know-how, processes, initiatives, or any other information relating to business, technical, financial or other affairs) and/or is designated as confidential by the disclosing party, concerning the business or products of the disclosing party or any of its clients, suppliers or contacts.
11.2 Subject to the above, the Company reserves the right to refer to the Client and its work for the Client for promotional and marketing purposes.
12.1 Either party (“Non-Defaulting Party”) may terminate this Agreement (without prejudice to its other rights and remedies) with immediate effect by written notice to the other party (“Defaulting Party”) if:
12.1.1 the Defaulting Party commits a material breach of any of its material obligations under this Agreement (including without limitation failing to pay any sums payable under this Agreement by the due date) and, if the breach is capable of remedy, fails to remedy it during the period of thirty (30) days starting on the date of receipt of notice from the Non-Defaulting Party specifying the breach and requiring it to be remedied;
12.1.2 the Defaulting Party makes or offers any arrangement, compromise or composition with its creditors;
12.1.3 the Defaulting Party is a limited company and any resolution, petition or order to wind up the Defaulting Party’s business (other than for the purpose of amalgamation or reconstruction without insolvency) or any encumbrancer takes possession of, or any administrative or other receiver or manager or trustee or similar officer is appointed over all or any part of the undertaking or assets of the Defaulting Party or any steps are taken to do the same;
12.2 The termination of this Agreement howsoever arising will be without prejudice to any obligations or rights accrued by either party prior to such termination.
12.3 In the event of termination howsoever caused or cancellation or amendment pursuant to clause 7, Client agrees to pay the Charges for all Goods and Services to which the Company is committed. The amount of the Charges payable shall be proportionate to and accurately reflect the work carried out by Company and shall include full reimbursement of any charges imposed on the Company by any third party.
12.4 Notwithstanding any suspension or determination of any order or part thereof, clauses 5 (Risk and Title), 8 (Liability), 10 (Intellectual Property), 11 (Confidentiality), 12 (Termination), 13 (Non-solicitation), and 14 (General) and any other of these Terms and Conditions which expressly or impliedly have effect after termination will continue to be enforceable.
13.1 The Client undertakes that it shall not during the term of this Agreement and for a period of six (6) months thereafter directly or indirectly and whether alone or in conjunction with or on behalf of any other person firm, company, corporation or organisation and whether as principal, shareholder, director, employee, agent, consultant, partner or otherwise engage, employ or solicit for engagement or employment any employee of the Company.
14.1 If the Company is prevented from performance of any of its obligations under this Agreement by Force Majeure, it shall forthwith serve notice in writing on the Client specifying the nature and extent of the circumstances giving rise to Force Majeure, and shall have no liability in respect of any delay in performance or any non-performance of any such obligation (and the time for performance shall be extended accordingly) to the extent that the delay or non-performance is due to Force Majeure.
14.2 If the Company is prevented from performance of any of its obligations by Force Majeure for a continuous period of more than [three (3) months], and without prejudice to the parties’ rights under clause 12, either party may terminate this Agreement immediately on written notice to the other party, in which case neither party shall have any liability to the other except that rights and liabilities which accrued prior to such termination shall continue to subsist.
15.1 This Agreement is personal to the Client and the Client shall not be entitled to sell, assign, sub-contract or otherwise transfer this Agreement or any part of it without the prior written consent of the Company.
15.2 Save as expressly specified in writing, nothing in this Agreement is intended to or shall operate to create a relationship of employer and employee, a partnership, a joint venture or agency of any kind between the parties.
15.3 No modification or variation of this Agreement shall be valid unless expressly agreed in writing by the Company.
15.4 In no event will any delay, failure or omission by the Company in enforcing any provisions of this Agreement be deemed to be or construed as a waiver of its rights under this Agreement.
15.5 Except insofar as this Agreement expressly provides that a third party may in his own right enforce a term of this Agreement, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
15.6 This Agreement and the documents referred to in it constitutes the entire agreement and understanding of the parties relating to the subject matter of this Agreement and supersedes any previous agreement or understanding between the parties in relation to such subject matter.
15.7 This Agreement shall be subject to and construed in accordance with English law and the Parties submit to the exclusive jurisdiction of the English courts.
15.8 If any provision of this Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall continue in full force and effect.
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