1. Interpretation

The following definitions and rules of interpretation apply in this agreement.

1.1 Definitions.

 

  • Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
  • Charges: the sums payable for the Services, as set out in the Order.
  • Customer: the customer placing the Order.
  • Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.
  • Customer Materials: all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Supplier in connection with the Services, including the items provided pursuant to clause 5.1(d).
  • Deliverables: any output of the Services to be provided by the Supplier to the Customer as requested by the Customer in accordance with clause 3.4 below, and any other documents, products and materials provided by the Supplier to the Customer in relation to the Services.
  • Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
  • Order: the Customer’s order for Services, as submitted via the Website.
  • Services: the creative design services to be provided by the supplier as set out in the Order.
  • Supplier: Mainroom Media Ltd T/a Design Cloud – 3 Hardman Street, Manchester M33HF
  • VAT: value added tax [or any equivalent tax] chargeable in the UK [or elsewhere].
  • Website: the Supplier’s website from time to time, currently located at designcloud.app.

 

1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.

1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.8 This agreement shall be binding on, and enure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.

1.9 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.10 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.11 A reference to writing or written includes email.

1.12 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

1.13 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.


2. Commencement and duration

2.1 This agreement shall commence on the date on which the Order is placed and shall continue, unless terminated earlier in accordance with clause 11 (Termination), for the following periods:

  • (a) if a monthly subscription is purchased, for a period of one month, and thereafter shall automatically renew for successive periods of one month, unless either party gives to the other not less than seven (7) days’ written notice of its intention to terminate this agreement at the end of the first one month period, or any successive one month period;
  • (b) if a three monthly subscription is purchased, for a period of three (3) months, and thereafter shall automatically renew for successive periods of three (3) months, unless either party gives to the other not less than thirty (30) days’ written notice of its intention to terminate this agreement at the end of the three (3) months month, or any successive three (3) months period;
  • (b) if a six monthly subscription is purchased, for a period of six (6) months, and thereafter shall automatically renew for successive periods of six (6) months, unless either party gives to the other not less than thirty (30) days’ written notice of its intention to terminate this agreement at the end of the first six (6) month period, or any successive six (6) month period; and
  • (c) if an annual subscription is purchased, for a period of one year, and thereafter shall automatically renew for successive periods of one year, unless either party gives to the other not less than thirty (30) days’ written notice of its intention to terminate this agreement at the end of the first one year period, or any successive one year period.


3. Supplier’s responsibilities

3.1 The Services provided pursuant to this agreement are meant for the purposes of providing quick and basic design services. The Customer acknowledges and agrees that the Services are not suitable for the creation of technical or large-scale design projects or design work.

3.2 All Services and all Deliverables are provided on an ‘as-is’ basis. The Supplier shall not be liable if the Services or Deliverables are not fit for any particular purpose for which the Customer wishes to use them.

3.3 It is the Customer’s responsibility to proof and check any Deliverables provided by the Supplier, and the Supplier shall not be responsible for any loss caused as a result of the Deliverables being inaccurate, incorrect or otherwise containing errors.

3.4 The Supplier shall use reasonable endeavours to supply the Services, and deliver the Deliverables to the Customer, in accordance with this agreement in all material respects.

3.5 The Supplier shall use reasonable endeavours to meet the following performance dates, but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of this agreement:

3.6 Requests for Deliverables will be submitted by the Customer through the Website or email from time to time, the Customer shall submit all such requests via the Customer’s workflow on the Website or to an email address specified in writing by the Supplier from time to time.

3.7 Subject to clause 3.6, the Supplier will endeavour to provide the Customer with one Deliverable by the end of each Business Day, however such deadline shall be an estimate only and time shall not be of the essence for delivery of any Deliverables.

3.8 If:

  • (a) the Customer submits a request for a Deliverable on a day which is not a Business Day, or after 3pm on a Business Day, it will be deemed to have been submitted at 9am on the next Business Day; and
  • (b) the Supplier requires further clarification or further information in order to prepare any Deliverables, it shall be entitled to notify the Customer of its further requirements, and the request for Deliverables shall be deemed to be submitted once the Customer provides such information in a form satisfactory to the Supplier.

3.9 The Supplier shall appoint an individual contact point for the Services. The Supplier shall use reasonable endeavours to ensure that the same person acts as the contact point throughout the term of this agreement, but may replace that person from time to time.


4. Customer’s obligations

4.1 The Customer shall:

  • (a) co-operate with the Supplier in all matters relating to the Services;
  • (b) submit all requests for Deliverables through the workflow page on the Website; and
  • (c) provide the Supplier with all information it reasonably requests, in a standard satisfactory to the Supplier, in order to provide the Services and prepare the Deliverables.

4.2 If the Supplier’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.


5. Non-solicitation

5.1 The Customer shall not, without the prior written consent of the Supplier, at any time from the date of this agreement to the expiry of six (6) months after the termination or expiry of this agreement, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services.

5.2 Any consent given by the Supplier in accordance with clause 5.1 shall be subject to the Customer paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of the Supplier’s employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.


6. Charges and payment

6.1 In consideration of the provision of the Services by the Supplier, the Customer shall pay the monthly Charges as set out in the Order.

6.2 The Customer shall pay the Charges on the day on which the Order is placed, and on the same day of each month thereafter, by direct debit to a bank account nominated by the Supplier, or by credit card payment. If the day on which the Order is placed does not have an equivalent day on the next month (for example, 31 January) the monthly payment will be made on the closest day to that date (for example, 28 February).

6.3 The Supplier may increase the Charges not more than once in each 12 month period, provided that it shall give to the Customer not less than 45 days’ written notice of such increase.

6.4 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier any sum due under this agreement on the due date:

  • (a) the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.4(a) will accrue each day at 6% a year above the Bank of England’s base rate from time to time, but at 6% a year for any period when that base rate is below 0%;
  • (b) the Supplier may suspend all or part of the Services until payment has been made in full.

6.5 All sums payable to the Supplier under this agreement:

  • (a) are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
  • (b) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).


7. Intellectual property rights

7.1 The Supplier does not warrant that the Deliverables will not infringe any third party’s Intellectual Property Rights.

7.2 The Customer shall carry out all relevant checks to satisfy itself that the Deliverables do not infringe the Intellectual Property Rights of any third party, and the Supplier shall not be liable to the Customer for any loss arising as a result of any such Deliverables.

7.3 In relation to the Deliverables:

  • (a) the Supplier and its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Customer Materials;
  • (b) the Supplier grants (subject to the Customer having paid all sums due to the Supplier pursuant to this agreement in full) the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual and irrevocable licence to use, publish, copy and modify the Deliverables (excluding the Customer Materials) for the purpose of receiving and using the Services and the Deliverables in its business; and
  • (c) the Customer may sub-license the rights granted in clause 7.2(b) to its customers.

7.4 In relation to the Customer Materials, the Customer:

  • (a) and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials; and
  • (b) grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this agreement for the purpose of providing the Services to the Customer.

7.5 The Customer:

  • (a) warrants that the receipt and use of the Customer Materials in the performance of this agreement by the Supplier, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
  • (b) shall indemnify the Supplier in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim brought against the Supplier, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this agreement of the Customer Materials or for any breach by the Customer of clause 7.6.

7.6 Any stock images which are used by the Supplier in the course of provision of the Services, or within the Deliverables, are provided by the Supplier under the strict terms of the licence with the relevant provider and the Customer shall comply with such terms and any reasonable instructions of the Supplier in the use of such stock images.

7.7 The Customer shall use any stock images solely in the form in which they are provided by the Supplier as a Deliverable, and shall not amend such Deliverable or use the stock images in isolation.


8. Limitation of liability

8.1 The restrictions on liability in this clause 8 apply to every liability arising under or in connection with this agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

8.2 Nothing in this agreement limits any liability which cannot legally be limited, including liability for:

  • (a) death or personal injury caused by negligence; and
  • (b) fraud or fraudulent misrepresentation.

8.3 Subject to clause 8.2, the Supplier’s total liability to the Customer shall not exceed the greater of £500 and the total Charges paid by the Customer to the Supplier in the immediately preceding 12 month period pursuant to this agreement.

8.4 The Supplier shall not be liable to the Customer for any:

  • (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
  • (g) loss arising as a result of actions taken by the Customer with the Deliverables, including any printing, publishing or other use of the Deliverables; and
  • (h) indirect or consequential loss.


9. Termination

9.1 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

  • (a) the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
  • (b) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
  • (c) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
  • (d) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
  • (e) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under this agreement has been placed in jeopardy.

9.2 Without affecting any other right or remedy available to it, the Supplier may terminate this agreement with immediate effect by giving written notice to the Customer if:

  • (a) the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
  • (b) there is a change of Control of the Customer.

9.3 On termination or expiry of this agreement:

  • (a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
  • (b) the Supplier shall on request return any of the Customer Materials not used up in the provision of the Services; and
  • (c) the following clauses shall continue in force: clause 1 (Interpretation), clause 5 (Non-solicitation), clause 7 (Intellectual property rights), clause 8 (Limitation of liability), clause 9 (Termination), clauses 11.4 to 11.7, clause 12 (Governing law) and clause 13 (Jurisdiction).

9.4 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.


10. Force majeure

10.1 Force Majeure Event means any circumstance not within a party’s reasonable control including acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority; collapse of buildings, fire, explosion or accident; non-performance by suppliers or subcontractors; and interruption or failure of utility service.

10.2 Provided it has complied with clause 10.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

10.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.

10.4 The Affected Party shall:

  • (a) as soon as reasonably practicable after the start of the Force Majeure Event but no later than 30 days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
  • (b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

10.5 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than four (4) weeks, the party not affected by the Force Majeure Event may terminate this agreement by giving 14 days’ written notice to the Affected Party.


11. General

11.1 This agreement is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.

11.2 The Supplier may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement.

11.3 No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.4 A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

11.5 A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

11.6 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.

11.7 If any provision or part-provision of this agreement is deemed deleted under clause 11.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

11.8 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

11.9 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.

11.10 Nothing in this agreement is intended to, or shall 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.

11.11 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

11.12 This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

11.13 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:

  • (a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
  • (b) sent by email to the address specified during the order process.

11.14 Any notice or communication shall be deemed to have been received:

  • (a) if delivered by hand, 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 at the time recorded by the delivery service; and
  • (c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 11.14(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

11.15 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.


12. Governing law

This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.


13. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.

This agreement has been entered into on the date stated at the beginning of it.

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