AGREED TERMS AND CONDITIONS
Your attention is particularly drawn to the provisions of clause 10 (Limitation of liability).
About us
1.1 Company details.
ISSHO DESIGN LIMITED (company number 17147627) (we and us) is a company registered in England and Wales and our registered office is at Alex House 260-268 Chapel Street, Salford, England, M3 5JZ.
Our contract with you
2.1 Our contract.
These terms and conditions (Terms) apply to the Order by you and supply of Services by us to you (Contract). They apply 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.
2.2 Our Services.
Services under these Terms means any services that are set out in the Order or in the service description provided by us to you alongside our quotation.
2.3 Order.
Order under these Terms means your order for the supply of Services, as set out in your purchase order form or overleaf, or your written acceptance of our quotation or overleaf, as applicable.
2.4 Entire agreement.
The Contract is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract. You also agree that you have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
2.5 Language.
These Terms and the Contract are made only in the English language.
2.6 If there is any conflict or inconsistency between any of the provisions in these Terms and the provisions of an Order, the provisions of these Terms prevail.
2.7 A reference to writing or written includes email but not fax.
Placing an order and its acceptance
3.1 A quotation for the Services specified in the Order given by us shall not constitute an offer.
3.2 Any order or acceptance of a quotation for the Services by you shall be deemed to be an offer by you to purchase the Services subject to these Terms. Any terms of purchase issued by you shall not apply to any contract for the Services between us.
3.3 Acknowledging receipt of your order.
After you place your order, you will receive an email from us acknowledging that we have received it, but please note that this does not mean that your order has been accepted. Our acceptance of your order will take place as described in clause 3.4.
3.4 Accepting your order.
Our acceptance of your Order takes place when we send an email to you to accept it (Order Confirmation), at which point and on which date (Commencement Date) the Contract between you and us will come into existence. The Contract will relate only to those Services confirmed in the Order Confirmation.
3.5 If we cannot accept your order.
If we are unable to supply you with the Services for any reason, we will inform you of this by email and we will not process your order. If you have already paid for the Services, we will refund you the full amount.
Our services
4.1 Descriptions and illustrations.
Any descriptions or illustrations contained in our advertising, brochures or other marketing collateral or on our site are published or provided for the sole purpose of giving an approximate idea of the services described in them. They will not form part of the Contract or have any contractual force.
4.2 Compliance with specification.
Subject to our right to amend or suspend the specification (see clause 4.3) we will supply the Services to you in accordance with the specification for the Services at the date of your Order in all material respects.
4.3 Changes to specification.
We reserve the right to suspend the performance of the Services or amend the specification of the Services if required by any applicable statutory or regulatory requirement or if the amendment will not materially affect the nature or quality of the Services, and we will notify you in advance of any such amendment or suspension.
4.4 Reasonable care and skill.
We warrant to you that the Services will be provided using reasonable care and skill in accordance with the generally recognised standards and practices in its industry.
4.5 Time for performance.
We will use reasonable endeavours to meet any performance dates specified in the Order Confirmation, but any such dates are estimates only and failure to perform the Services by such dates will not give you the right to terminate the Contract. Time is not of the essence for the performance of any of our obligations in the Contract.
Your obligations
5.1 It is your responsibility to ensure that:
a) the terms of your order are complete and accurate;
b) you cooperate with us in all matters relating to the Services and ensure that your other suppliers co-operate with us where reasonably necessary;
c) you provide us, our employees, agents, consultants and subcontractors, with access to your premises, office accommodation and other facilities as we may reasonably require;
d) you provide us with such information and materials we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate;
e) you prepare your premises for the supply of the Services;
f) you 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; and
g) you comply with all applicable laws, including health and safety laws in your performance of the Contract.
5.2 If our ability to perform the Services is prevented or delayed by any failure by you to fulfil any obligation listed in clause 5.1 (Your Default):
a) we will be entitled to suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services. In certain circumstances Your Default may entitle us to terminate the Contract under clause 12 (Termination);
b) we shall not be in breach of the Contract and we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Services; and
c) it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.
Charges
6.1 In consideration of us providing the Services you must pay our charges (Charges) in accordance with this clause 6.
6.2 The Charges are the prices quoted on the Order unless it is agreed in writing between us that the Charges are calculated on a time and materials basis in accordance with our daily fee rates, as shown in clause 6.3.
6.3 If the Charges are calculated on a time and materials basis:
a) our daily fee rates for each individual are calculated on the basis of an 8-hour day from 7.30 am to 4.30 pm worked on a Business Day (Business Hours). We may charge on a pro rata basis for part days worked by us during Business Hours. Business Day under these Terms means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business; and
c) we may charge for work outside Business Hours at the overtime rate of 3% of the daily fee rate on a pro-rata basis.
6.4 We may request and you shall reimburse us for:
a) any expenses reasonably incurred by our personnel in the performance of the Services, including travel, hotel, subsistence and other ancillary expenses; and
b) the cost of any materials or services procured by us from third parties for the performance of the Services.
6.5 If you wish to change the scope of the Services after we accept your order, and we agree to such change, we will modify the Charges accordingly.
6.6 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 Average Weekly Earnings 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 Average Weekly Earnings Index.
6.7 Our Charges are exclusive of VAT. Where VAT is payable in respect of some or all of the Services you must pay us such additional amounts in respect of VAT, at the applicable rate, at the same time as you pay the Charges.
How to pay
7.1 We shall invoice you for the Charges on the schedule set out in the Order. Where no schedule is specified, we shall invoice you for the Charges at the start of each month for Services performed during that month. For any failed or cancelled payments, we have the option to charge you a £50 administration fee.
7.2 Without prejudice to any other rights, we may submit interim invoices to you in respect of the Services performed and/or costs incurred from time to time. Such invoices may be issued at regular intervals or upon completion of defined stages of the Services. All interim invoices shall be due and payable in accordance with the payment terms set out under these Terms.
7.3 We shall invoice you monthly in arrears for expenses and third party costs if required.
7.4 You shall pay each invoice submitted by us:
a) within 30 days of the invoice date; and
b) in full and in cleared funds to a bank account nominated in writing by us, and
c) time for payment shall be of the essence of the Contract.
7.5 If you fail to make a payment under the Contract by the due date, then, without limiting our remedies under clause 12 (Termination) or any other rights or remedies that we may have,
a) you will have to 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 7.5 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%; and
b) we may suspend all or part of the services until payment has been made in full.
7.6 You shall each pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
Intellectual property rights
8.1 All intellectual property rights in or arising out of or in connection with the Services including any deliverables developed by us in the performance of the Services (Deliverables) (other than intellectual property rights in any materials provided by you) will be owned by us.
8.2 Subject to us receiving payment for all Charges, we agree to grant you a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the Deliverables specified in your order (excluding materials provided by you) for the purpose of receiving and using the Services and such Deliverables in your business. You may not sub-license, assign or otherwise transfer the rights granted in this clause 8.2.
8.3 You agree to grant 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. You warrant and represent that our use of your materials in the performance of the Services will not infringe the rights of any third party.
8.4 You shall indemnify us against all Losses incurred by us as a result of any claim that the supply, receipt or use of your materials infringes the Intellectual Property Rights of any third party. Losses under these Terms means all liabilities, damages, losses (including loss of profits, loss of business, loss of reputation, loss of savings and loss of opportunity), fines, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and reasonable professional costs and expenses).
How we may use your personal information
9.1 We will use any personal information you provide to us to:
a) provide the Services;
b) process your payment for the Services; and
c) inform you about similar services that we provide, but you may stop receiving these at any time by contacting us.
Limitation of liability: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE 10.
10.1 The limits and exclusions in this clause 10 reflect the insurance cover we have been able to arrange and you are responsible for making your own arrangements for the insurance of any excess loss.
10.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
death or personal injury caused by negligence;
fraud or fraudulent misrepresentation; and
breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
10.3 Nothing in these Terms excludes or limits any liability for your payment obligations under the Contract.
10.4 Nothing in this agreement shall limit your liability under 8.4 (Intellectual Property Rights indemnities).
10.5 Subject to clause 10.2, we shall not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
a) loss of profits;
b) loss of sales or business;
c) loss of agreements or contracts;
d) loss of anticipated savings;
e) loss of use or corruption of software, data or information;
f) loss of or damage to goodwill; and
g) any indirect or consequential loss.
10.6 Subject to clause 10.2, our total liability to you arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or
otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to the sums paid by you to us under the Contract. You agree and acknowledge that it is both and reasonable and acceptable for us to exclude our liability in this way.
10.7 We shall not be liable for any Losses incurred by you as a result of:
a) using draft Deliverables as finished work without our prior written approval; or
b) using the Deliverables for any purpose other than that for which they were intended.
10.8 We have given commitments as to compliance of the Services with the relevant specification in clause 4.2. 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.
10.9 Subject to clause 10.2, all conditions, warranties, representations or other terms that might otherwise be implied into the Contract by statute, common law, course of dealing, trade usage or otherwise are excluded from the Contract.
10.10 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 and shall expire 1 month from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
10.11 This clause 10 will survive termination of the Contract.
Confidentiality
11.1 We each undertake that we will not at any time during the Contract, and for a period of 2 years after termination of the Contract, disclose to any person any confidential information concerning one another’s business, affairs, customers, clients or suppliers, except as permitted by clause 11.2. For the avoidance of doubt, nothing in this clause 11 shall prevent us to retain copies of the works produced in connection with the Services and to use, reproduce, and display them for our own portfolio, marketing, and advertising purposes.
11.2 We each may disclose the other’s confidential information:
a) to such of our respective employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising our respective rights or carrying out our respective obligations under the Contract. We will each ensure that such employees, officers, representatives, subcontractors or advisers comply with this clause 11; and
b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 Each of us may only use the other’s confidential information for the purpose of fulfilling our respective obligations under the Contract.
Termination, consequences of termination and survival
12.1 Termination.
Without limiting any of our other rights, we may suspend the performance of the Services, or terminate the Contract with immediate effect by giving written notice to you if:
a) you commit a material breach of any term of the Contract and (if such a breach is remediable) fail to remedy that breach within 7 days of you being notified in writing to do so;
b) you fail to pay any amount due under the Contract on the due date for payment;
c) you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your 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 your assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
d) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or
e) your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy or we believe that you are about to become, subject to any of the events listed in clause 12.1(b) to clause 12.1(d).
12.2 Consequences of termination
a) On termination of the Contract you must:
(i) immediately pay us all of our outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt; and
(ii) return all of our Materials and any deliverables specified in your order 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 must not use them for any purpose unconnected with the Contract.
b) Termination of the Contract will not affect our rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
12.3 Survival.
Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
Events outside our control
13.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control (Event Outside Our Control).
13.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:
a) we will contact you as soon as reasonably possible to notify you; and
b) our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will arrange a new date for performance of the Services with you after the Event Outside Our Control is over.
13.3 You may cancel the Contract affected by an Event Outside Our Control which has continued for more than 90 days. To cancel please contact us. If you opt to cancel we will refund the price you have paid, less the charges incurred us by in performing the Services up to the date of the occurrence of the Event Outside Our Control.
Communications between us
14.1 When we refer to “in writing” in these Terms, this includes email.
14.2 Any notice or other communication given by one of us to the other under or in connection with the Contract must be in writing and be delivered personally, sent by pre-paid first class post or other next working day delivery service, or email.
14.3 A notice or other communication is deemed to have been received:
a) if delivered personally, on signature of a delivery receipt or at the time the notice is left at the proper address;
b) 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
c) if sent by email, at 9.00 am the next Business day after transmission.
14.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the
case of an email, that such email was sent to the specified email address of the addressee.
14.5 The provisions of this clause 14 will not apply to the service of any proceedings or other documents in any legal action.
General
15.1 Assignment and transfer
a) We may at any time assign or transfer our rights and obligations under the Contract to another entity.
b) You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.
15.2 Variation.
Any variation of the Contract only has effect if it is in writing and signed by you and us (or our respective authorised representatives).
15.3 Waiver.
If we do not insist that you perform any of your obligations under the Contract, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
15.4 Severance.
Each paragraph of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
15.5 Third party rights.
The Contract is between you and us. No other party has any rights to enforce any of its terms.
15.6 Relationship of the parties.
Nothing in these Terms is intended to, or will be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
15.7 Governing law and jurisdiction.
The Contract is governed by English law and we each irrevocably agree to submit all disputes arising out of or in connection with the Contract to the exclusive jurisdiction of the English courts worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the Deliverables specified in your order (excluding materials provided by you) for the purpose of receiving and using the Services and such Deliverables in your business. You may not sub-license, assign or otherwise transfer the rights granted in this clause 8.2.
Issho Design Limited is a company registered in England and Wales, Companies House number 17147627.
Registered address: Alex House 260-268 Chapel Street, Salford, England, M3 5JZ