The following definitions and rules of interpretation apply in this agreement.
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.
2.1 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:
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.
3.9 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.
4.1 The Customer shall:
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.
5.1 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.
6.1 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:
6.5 All sums payable to the Supplier under this agreement:
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:
7.4 In relation to the Customer Materials, the Customer:
7.5 The Customer:
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.
8.1 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:
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:
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:
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:
9.3 On termination or expiry of this agreement:
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.
10.1 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:
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.
11.1 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:
11.14 Any notice or communication shall be deemed to have been received:
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.
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.
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.