Terms and Conditions

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in these Terms.

Affiliates: includes in relation to either party and any subsidiary or holding company of that party and each and any subsidiary of a holding company of that party.

Brief: the written specification of the Services to be provided by Design Culture detailing the requirements of the Client including, but not limited to, a detailed description of the work to be done, any technical specification and any key dates and/or deadlines agreed between the parties as specified in clause 3.

Business Day: Monday to Friday (excluding bank holidays in England).

Charges: means any of the Website Design Charges, Design for Print Charges and/or the Software Development Charges.

Client’s Manager: the Client’s manager for the Services, appointed in accordance with clause 7.

Computer Hardware: the computers and other equipment to be used by the Client in conjunction with the Software.

Defects: an error in the Software that causes it to fail to operate substantially in accordance with the Brief.

Deliverables: all Documents, products and materials developed by Design Culture or its agents, subcontractors, consultants and employees in relation to the Services in any form, including the Printed Materials, computer programs, data, reports and specifications (including drafts).

Design Culture’s Manager: Design Culture’s manager for the Services appointed under clause 7.

Design for Print Charges: the charges in respect of the Design for Print Services together with any charges arising out of clause 8.

Design for Print Services: the provision of typesetting, artwork, page layout, reproduction, printing and print finishing services to create a final product as required by the Client or any other similar design services to be provided by Design Culture and as may be described as ‘Design for Print Services’ in an Estimate or other communication sent to the Client from Design Culture in respect of the Services to be provided.

Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.

Estimate: the calculation of the applicable Charges for the Services requested by the Client, which will be provided by Design Culture to the Client prior to carrying out the Services.

Good Industry Practice: the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a leading company within the relevant industry or business sector.

In-put Material: all Documents, information and materials provided by the Client relating to the Services, including computer programs, data, reports and specifications and any in-put materials specified in the Brief.

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Licensed User: the employees and agents of the Client who use the Software.

Normal Working Hours: the hours between 9 a.m. and 5 p.m. Monday to Friday excluding bank holidays in England.

Pre-existing Materials: all Documents, information and materials provided by Design Culture relating to the Services which existed prior to the commencement of these Terms, including computer programs, data, reports and specifications and any pre-existing materials specified in the Brief.

Printed Material: the final product of the Design for Print Services.

Services: the services to be provided by Design Culture under these Terms as set out in the Brief, which may include any of the Design for Print, Website Design or Software Development Services, together with any other services which Design Culture provides or agrees to provide to the Client.

Site: the website to be designed by Design Culture for the Client pursuant to these Terms.

Site Acceptance Tests: the tests, as agreed between the parties, to be carried out on the Site to ensure compliance with the Brief.

Site Software: the software for the Site.

Software: the software programs developed by Design Culture for the Client in accordance with the Brief together with any upgrades which the Client will be charged separately for.

Software Acceptance Tests: the tests of the Software to ensure compliance with the Brief, as agreed between the parties.

Software Charges: the charges in respect of the Website Design Services together with any charges arising out of clause 8.

Software Development Services: the services to be provided by Design Culture under these Terms in order to develop the Software for the Client.

Third Party Licences: any licences relating to the Third Party Software incorporated into the Software or the Site, as applicable.

Third Party Materials: means any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form which belongs to a third party and which is incorporated into the Printed Materials.

Third Party Software: the software programs proprietary to third parties which are to be provided to the Client and which may be updated from time to time.

VAT: value added tax chargeable under English law for the time being and any similar additional tax.

Website Design Charges: the charges in respect of the Website Design Services together with any charges arising out of clause 8.

Website Design Services: the website design and development services to be provided pursuant to these Terms and in accordance with the Brief, or any other digital design services provided by Design Culture.

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of these Terms.

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

1.4 The schedules and background form part of these Terms and shall have effect as if set out in full in the body of these Terms. Any reference to these Terms includes the schedules and background.

1.5 Words in the singular shall include the plural and vice versa.

1.6 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.7 A reference to writing or written includes faxes but not e-mail.

1.8 Where the words include(s), including or in particular are used in these Terms, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.

1.9 Any obligation in these Terms on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.

1.10 References to clauses and schedules are to the clauses and schedules of these Terms.

2. Structure of the terms

2.1 These Terms set out the master terms and conditions which will govern the supply by Design Culture of the Services and Deliverables to the Client. Clauses 2 to 3, 7 to 9 and 10.4 to 20 will apply to any Services required by the Client, unless it is clear from the intention of the clause that they should not apply to the particular Services requested.

2.2 Design Culture and the Client will agree, in writing, the Services required by the Client prior to the date of these Terms, which will be set out in the Brief. Any written correspondence between the parties, including the Brief and the Estimate, together with these Terms, will form a distinct contract in relation to the relevant Services being provided.

2.3 These Terms apply to the contract between Design Culture and the Client to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.4 For the avoidance of doubt, the parties agree to electronic means of communication and agree that all contract, notices, information, requests and other communications that the parties provide electronically, comply with any legal requirements that such communications be in writing.

3. Services and duration

3.1 The Client shall provide Design Culture with a Brief setting out the requirements and specifications of the Services which it requires, including a description of what specific design services it requires, what work is to be done, dates by which it is requested to be started and finished, In-put Materials and such other information as Design Culture may request to allow it to commence the particular Services.

3.2 Design Culture and the Client shall discuss and agree the draft Brief and when it has been agreed between the parties it shall form part of these Terms.

3.3 Once the Brief has been agreed, Design Culture will send the Estimate to the Client (unless there are reasons why Design Culture choose not to issue an estimate) and no further amendments shall be made to the Brief except in accordance with clause 8. Design Culture shall then proceed to provide the particular Services to the Client in accordance with the provisions of these Terms.

3.4 The Services supplied shall continue to be supplied until the Services are completed in accordance with the Brief and these Terms unless these Terms are terminated earlier by one of the parties in accordance with clause 16.

3.5 The Client will provide all reasonable assistance and support reasonably required by Design Culture to enable Design Culture to comply with its obligations under these Terms.

4. Design for print services

The following provisions 4.1 to 4.3 will apply only where the Client requests Design for Print Services from Design Culture:

4.1 Design Culture’s Obligations

4.1.1 Design Culture shall use reasonable endeavours to manage and complete the Design for Print Services, and to deliver the Printed Materials to the Client, in accordance with the Brief and these Terms.

4.1.2 Design Culture shall use reasonable endeavours to meet any performance dates specified in the Brief but any such dates shall be estimates only and time for performance by Design Culture shall not be of the essence of these Terms.

4.2 The Client’s Obligations

4.2.1 The Client shall:

(a) co-operate with Design Culture in all matters relating to the Design for Print Services; and

(b) use its best endeavours to comply with any deadlines in respect of the Design for Print Services and co-operate with Design Culture in respect of any deadlines to be met by Design Culture in respect of such services.

4.3 Quantities

4.3.1 Where relevant, Design Culture shall use its reasonable endeavours to print the number of copies of the Printed Material
set out in the Brief or Estimate, subject to Design Culture being entitled to print and deliver +/- 5% of the agreed number
of copies.

4.3.2 Where the number of copies of the Printed Material is within the parameters set out in clause 4.3.1 then the Client shall not be entitled to reject delivery of the Printed Material because the number of copies is greater or less than the number
of copies agreed in the Brief or the Estimate.

4.3.3 For the avoidance of doubt, Design Culture shall be entitled to charge for the actual number of copies of the Printed Material delivered to the Client rather than the amount set out in the Brief or the Estimate.

4.4 Risk and Title

4.4.1 The risk in the Printed Material shall pass to the Client on the date that the Printed Material is delivered to the Client’s designated premises.

4.4.2 Title in the Printed Material shall not pass to the Client until Design Culture has received payment in full of all sums owing to Design Culture in respect of the Design for Print Services, whether or not delivery has been made.

4.5 Acceptance of Printed Material

4.5.1 Unless the Client informs Design Culture within 2 Business Days of the date on which the Printed Material is delivered to the Client that the Printed Material is not substantially in conformance with the Brief, then the Printed Material will be deemed accepted by the Client.

4.5.2 In the event that the Client informs Design Culture that the Printed Material does not conform with the Brief, the Client will notify Design Culture in detail to what extent the Printed Material does not conform. If Design Culture does not dispute the notice from the Client then design Culture will correct the errors and resend the Printed Material to the Client.

4.6 In-Put Materials Provided by the Client

4.6.1 The Client will provide, in a timely manner, such In-put Material and other information as Design Culture may require, and ensure that such material is accurate in all material respects.

4.6.2 If, in the reasonable opinion of Design Culture, Design Culture considers that In-Put Materials and any other materials provided to Design Culture by or on behalf of the Client:

(a) are defamatory;

(b) contain, express or indicate illegal racist or otherwise discriminatory opinions;

(c) contain designs, images, graphics or photographs which are illegal, racist or otherwise discriminatory;

(d) are illegal or contain illegal content;

(e) infringe or breach the Intellectual Property Rights of a third party; or

(f) are used outside the provisions of any licence that the Client may have to use such materials; then Design Culture shall not be required to supply the Design for Print Services in relation to such materials or any Printed Materials based on them.

4.6.3 The right not to provide any Design for Print Services shall also apply where carrying them out would involve the creation, design, layout, production or reproduction of copy, design, artwork or images (in any format) which fall into one of the categories set out in clause 4.6.2 above.

4.6.4 If the Client provides materials to design Culture by electronic means (Electronic Files), Design Culture shall not be responsible for checking:

(a) (where the materials consist of copy) the accuracy of the content, including but not limited to checking whether the copy is spelt correctly, is grammatically correct, or formatted in accordance with any specification, layout or design or in accordance with the Brief or Estimate;

(b) (where the materials consist of artwork or layouts) whether the artwork or layouts are positioned correctly on a page or in accordance with any instructions as to how the artwork or layout are to be reproduced or printed; or

(c) (where materials are supplied as a file ready for reproduction (and then for the production of Printed Materials)) any of the contents, layout or commands, markings, formatting or other matters.

4.6.5 For materials submitted as Electronic Files:

(a) The Client acknowledges and agrees that:

(i) the devices on which Electronic Files are stored (or on which they are submitted by the Client); and/or

(ii) the communication methods used by the Client to transmit the Electronic Files to Design Culture, may be subject to corruption or alteration which is not within the reasonable control or reasonable knowledge of Design Culture.

4.7 Ownership of Printed Materials

4.7.1 Unless otherwise agreed between the parties, all Intellectual Property Rights in the Printed Materials, but excluding the In-Put Materials and any Third Party Materials, arising in connection with the Design for Print Services, shall be the property of Design Culture and Design Culture hereby grants a personal, non-exclusive licence of such Intellectual Property Rights to the Client for the purposes of the Client using the Printed Materials for its own commercial purposes.

4.7.2 Any Third Party Materials used by Design Culture in creating the Printed Materials shall be supplied by Design Culture in accordance with the relevant third party’s standard terms.

5. Website design and development services

The following provisions 5.1 to 5.6 will only apply where the Client requests Website Design and Development services from Design Culture.

5.1 Scope of the Website Design Services

5.1.1 Design Culture shall:

(a) Liaise with the Client in developing the Site; and

(b) Design, develop and deliver the Site in accordance with the Brief.

5.2 Customer Responsibilities

5.2.1 The Client acknowledges that Design Culture’s ability to provide the Website Design Services is dependent upon the full and timely co-operation of the Client (which the Client agrees to provide), as well as the accuracy and completeness of the design specifications (including the Brief) provided by the Client and any information and data the Client provides to Design Culture. Accordingly, the Client shall provide Design Culture with access to, and use of, all information, data and documentation reasonably required by Design Culture for the performance by Design Culture of its obligations under these Terms.

5.2.2 The Client will be responsible for the accuracy and completeness of the In-Put Materials on the Site.

5.3 Development and Acceptance of the Site

5.3.1 The Site Acceptance Tests shall test compliance of the Site with the Brief.

5.3.2 Acceptance of the Site shall occur when the Site has passed the Site Acceptance Tests.

5.3.3 If any failure to pass the Site Acceptance Tests results from a defect which is caused by an act or omission of the Client, or by one of the Client’s sub-contractors or agents for whom Design Culture has no responsibility (Non-Design Culture Defect), the Site shall be deemed to have passed the Site Acceptance Tests notwithstanding such Non-Design Culture Defect. Design Culture shall provide assistance reasonably required by the Client in remedying any Non-Design Culture Defect by supplying additional services or products at Design Culture’s then current fees and prices.

5.3.4 Acceptance of the Site shall be deemed to have taken place upon the occurrence of any of the following events:

(a) The Client uses any part of the Site for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or

(b) The Client unreasonably delays the start of the relevant Acceptance Tests or any retests for a period of seven working days from the date on which Design Culture is ready to commence running such Acceptance Tests or retests.

5.4 Third Party Software

5.4.1 The Third Party Software shall be supplied in accordance with and subject to the relevant licensor’s standard terms. The one-off licence fee for such Third Party Software is included in the Website Design Charges. Maintenance and support of the Software is the responsibility of any third party supplier and not Design Culture.

5.5 Intellectual Property Rights

5.5.1 In consideration of the Charges payable by the Client, Design Culture assigns to the Client absolutely with full title guarantee Design Culture’s present and future Intellectual Property Rights in the Site and the Site Software and all other materials created or obtained by Design Culture exclusively for the Client for the Site and the Site Software pursuant to the provision of the Services, provided that:

5.5.1.1 all In-put Materials shall remain the property of the Client or its licensors, and the Client grants to Design Culture a non-exclusive, worldwide, non-transferrable, royalty-free licence of such of the Intellectual Property Rights in the In-put Materials as is necessary for Design Culture to fulfil its obligations under the Brief; and

5.5.1.2 all Pre-existing Materials, all other Intellectual Property Rights belonging to Design Culture prior to the commencement of the Brief, all Third Party Materials and all Third Party Software shall remain the property of Design Culture or its licensors (as the case may be) and, subject to the Client’s compliance with these Terms including payment of all Charges, Design Culture grants to the Client a non-exclusive, non-transferable, royalty-free licence (or sublicence (as the case may be)) of such of Design Culture’s Intellectual Property Rights in the Pre-existing Materials and other materials and of such of the Third Party Materials and Software as is necessary for the Client to make use of the site and the Site Software and the Services, which licence or sublicence:

(a) in the case of software or materials forming Pre-Existing Materials belonging to Design Culture shall be a perpetual licence including the provision of source code (upon termination);

(b) in the case of Third Party Materials it shall be on such terms as Design Culture may grant in accordance with the terms between Design Culture and the Third Party Material owner or according to any Third Party Terms the Client has signed or any open source software license terms that apply; and

(c) shall be to the extent and for the purpose only of using and maintaining the Site and the Site Software.

5.5.2 Except as expressly agreed in this clause [5.5.1], no Intellectual Property Rights of either party are transferred or licensed as a result of these Terms.

5.5.3 Subject to the foregoing, each party shall be entitled to use in any way it deems fit any skills, techniques or know-how acquired or developed or used in connection with the provision of the Services provided always that such skills, techniques or know-how do not infringe the other party’s Intellectual Property Rights now or in the future or disclose or breach the confidentiality of the other party’s Confidential Information.

5.5.4 Design Culture may include the statement “Website by Design Culture’, or a similar statement as a hyperlink to Design Culture’s website in the footer of the Site.

6. Software development services

The following provisions 6.1 to 6.12 will apply only where the Client requests Software Development Services from Design Culture:

6.1 Scope

6.1.1 Design Culture grants the licence and shall supply the Software, the Documentation and the Software Development Services to the Client in accordance with the Brief and these Terms.

6.2 Software and Documentation

6.2.1 Design Culture shall carry out the Software Development Services with reasonable diligence and despatch, and with reasonable skill and expertise, to provide the Software in accordance with the Brief.

6.2.2 Where applicable, Design Culture shall provide the Third Party Software to the Client under the standard licence terms provided by the relevant third parties, copies of which shall be provided to the Client, and the Client agrees to be bound by such licence terms.

6.2.3 Design Culture shall provide to the Client, from time to time, copies of any Documentation containing sufficient up-to-date information for the proper use and maintenance of the Software. Such Documentation may be supplied in electronic form.

6.2.4 The Client may make such further copies of the Documentation as are reasonably necessary for the use and maintenance of the Software and for training the Client’s personnel in use of the Software. The Client shall ensure that all of Design Culture’s proprietary notices are reproduced in any such copy.

6.2.5 The Client may provide copies of the Documentation to any third party who needs to know the information contained in it, provided that such third party first agrees to keep the Documentation confidential and to only use for its own
commercial purposes.

6.3 The Software Development Services

6.3.1 Design Culture shall develop the Software in accordance with the requirements of the Brief.

6.3.2 Design Culture agrees:

(a) to deliver and install the Software at the Site(s); and

(b) to carry out, in conjunction with the Client, the Software Acceptance Tests.

on the terms and conditions set out in these Terms.

6.3.3 In performing the Software Development Services, Design Culture shall comply with the Client’s reasonable instructions to ensure minimal disruption to the Client’s business.

6.4 Delivery and Installation

6.4.1 Design Culture shall deliver the Software to the Site(s) by any applicable date agreed between the parties. However, time for delivery of the Software shall not be of the essence.

6.4.2 Design Culture shall supply to the Client, within a reasonable time before any agreed date, such information and assistance as may be necessary to enable the Client to prepare the Site(s) for the installation of the Software.

6.4.3 The Client shall, at its own expense, prepare the Site(s) in accordance with the information provided by Design Culture in advance of any agreed date. On completion of such preparation, Design Culture shall inspect the Site(s) and specify, within a reasonable time before any agreed date, any corrections or modifications required.

6.4.4 The Client shall be responsible for ensuring that each item of Computer Hardware is installed and is in working order and available to Design Culture no later than any agreed date.

6.4.5 If any delivery is delayed at the request of the Client, or because of his acts or omissions, any agreed dates shall be amended to take account of such delay. If Design Culture can demonstrate that the delay has resulted in an increase in cost to Design Culture of carrying out its obligations under these Terms, Design Culture may, at its sole discretion, notify the Client that it wishes to increase the Software Development Charges by an amount not exceeding any such demonstrable cost. Design Culture may invoice the Client for any additional monies that become payable in this way, within 30 days of demonstrating the increase in costs.

6.5 Acceptance Tests

6.5.1 The Software Acceptance Tests shall be started as soon as reasonably possible after installation and be carried out as agreed between the parties.

6.5.2 If the Software fails to pass the Software Acceptance Tests, the Client shall, within 4 days from the completion of the Software Acceptance Tests or any part of these tests, provide a written notice to this effect, giving details of such failure(s). Design Culture shall remedy the defects and/or deficiencies and the relevant test(s) shall be repeated within a reasonable time.

6.5.3 If the Software fails in some material respect to pass any repeated Software Acceptance Tests within four weeks from the date of its second submission to the Software Acceptance Tests, then the Client may, by written notice to Design Culture, choose at its sole discretion:

(a) to fix (without prejudice to the Client’s other rights and remedies) a new date for carrying out further tests on the Software on the same terms and conditions. If Software fails such further tests then the Client may request a repeat test;

(b) to permit installation of the Software subject to such change of acceptance criteria, amendment of the Brief and/or reduction in the Software Development Charges as, after taking into account all the relevant circumstances, is reasonable; or

(c) if Design Culture is unable to correct material defects within a period of three months from the commencement of Software Acceptance Tests, to reject the Software as not being in conformity with the Brief, in which event the Client may terminate these Terms.

6.6 Acceptance

6.6.1 Acceptance of the Software shall be deemed to have occurred on whichever is the earliest of:

(a) written notice (which may be by email) from the Client confirming acceptance;

(b) the expiry of five days after the completion of all the Software Acceptance Tests, unless the Client has given any written notice under clause 6.5.2;

(c) the expiry of ten days after installation of the Software if the Software Acceptance Tests for that module have not started, or have not been pursued with due diligence; or

(d) the use of the Software by the Client or any of its Affiliates in the normal course of its business.

6.7 Extension of Time

6.7.1 Design Culture shall be given an extension of any timetable agreed between the parties if one of more of the following events occurs:

(a) a variation to the Software is made at the Client’s request under the change control procedures set out in clause 8;

(b) a force majeure event occurs as described in clause 17.1;

(c) a delay is caused in whole or in part by an action or omission of the Client or its employees, agents or third-party contractors.

6.7.2 If Design Culture is entitled to an extension of time under clause 6.7.1, it shall give written notice to the Client not later than seven days after the beginning of the event. Such notice shall specify the event relied on and, in the case of a force majeure event under clause 17.1 shall estimate the probable extent of the delay.

6.7.3 The Client’s Manager and Design Culture’s Manager shall use best endeavours to agree in writing, signed by both parties, what extension of time is reasonable in the circumstances. Any timetables shall be extended as necessary.

6.8 Ownership

6.8.1 Unless otherwise agreed between the parties in writing, the Intellectual Property Rights in the Software (other than Third-Party Software) are, and shall remain, the property of Design Culture and Design Culture reserves the right to grant a licence to use the Software to any other party or parties.

6.8.2 The Documentation is the property of Design Culture (or the appropriate third-party rights-owner(s)) and the Client acquires no rights in or to such Documentation other than those expressly granted by Design Culture in writing.

6.8.3 The Client shall use reasonable endeavours to prevent any infringement of Design Culture’s Intellectual Property Rights in the Software and shall promptly report to Design Culture any such infringement that comes to its attention. In particular, the Client shall:

(a) ensure that each Licensed User, before starting to use the Software, is made aware that the Software is proprietary to Design Culture and that it may only be used and copied in accordance with these Terms;

(b) implement suitable disciplinary procedures for employees who make unauthorised use or copies of the Software; and

(c) not permit third parties to have access to the Software without the prior written consent of Design Culture, who may require that such third party executes a written confidentiality agreement before being given access to the Software.

6.9 Software Licence and Documentation

6.9.1 Design Culture grants, subject to the terms of these Terms, the Client and its Affiliates the personal, non-exclusive, non-transferable right to use the Software on the Computer Hardware and the Documentation for any purpose related to its internal business (but excluding the right to resell, sub-licence or distribute the Software or use the Software to provide services to third parties except with Design Culture’s prior written approval) (Licensed Purposes).

6.9.2 The Client shall comply with any Third-Party Licences and shall indemnify and hold Design Culture harmless against any loss of damage which it may suffer or incur as a result of the Client’s breach of such terms.

6.9.3 Design Culture may treat the Client’s breach of any Third-Party Licence as a breach of these Terms.

6.10 Use of the Software

6.10.1 The Client may use the Software with other software.

6.10.2 The Client may not make adaptations or variations of the Software without the prior written consent of Design Culture.

6.10.3 The Client may not disassemble, decompile, reverse translate or in any other manner decode the Software, except as permitted by law.

6.11 Warranties

6.11.1 Design Culture warrants that it will perform the Software Development Services quickly and in a reliable and professional manner, in conformity with Good Industry Practice, by a sufficient number of competent personnel with appropriate skills, qualifications and experience.

6.11.2 Design Culture expressly excludes any implied or express representation that the Software will be fit:

(a) to operate in conjunction with any hardware items or software products other than those that are identified as being compatible with the Software prior to the completion of the Software Development Services; or

(b) to operate uninterrupted or error-free.

6.11.3 Design Culture does not warrant or guarantee that it will be able to rectify all Defects.

6.11.4 Design Culture will not be obliged to rectify any particular Defect if attempts to rectify such Defect other than normal recovery or diagnostic procedures have been made by the Clients personnel or third parties without the permission of Design Culture.

6.12 Upgrades

6.12.1 The Client acknowledges and agrees that any amendments and/or updates to, or new versions of, any Third Party Software used in the development of the Software may result in the Software needing to be updated by Design Culture. Any such updating required will be charged in accordance with Design Culture’s standard rates at the time and such charges shall be notified to the Client prior to any upgrades being carried out.

7. Project management

7.1 Each party shall appoint a project manager who shall:

7.1.1 provide professional and prompt liaison with the other party; and

7.1.2 have the necessary expertise and authority to commit the relevant party.

7.2 The parties shall use their reasonable endeavours to ensure that the same person acts as its manager for the duration of these Terms, but may replace such manager from time to time where reasonably necessary in the interests of its business.

8. Change control

8.1 The Client’s Manager and Design Culture’s Manager shall discuss matters relating to the Services as and when required. If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.

8.2 If either party requests a change to the scope or execution of the Services, Design Culture shall, within a reasonable time, provide a written estimate to the Client of:

8.2.1 the likely time required to implement the change;

8.2.2 any necessary variations to Design Culture’s charges arising from the change;

8.2.3 the likely effect of the change on the Services; and

8.2.4 any other impact of the change on these Terms.

8.3 If the Client wishes Design Culture to proceed with the change, Design Culture has no obligation to do so unless and until the parties have agreed the necessary variations to its charges, the Services and any other relevant terms of these Terms to take account of the change and these Terms have been varied in accordance with clause 17.2.

8.4 Notwithstanding clause 8.3, Design Culture may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. Design Culture may, from time to time and subject to Customer’s prior written consent, which shall not be unreasonably withheld or delayed change the Services, provided that such changes do not materially affect the nature or quality of the Services and, where practicable, it will give the Client at least 14 days’ notice of any change.

8.5 Design Culture may charge for the time it spends assessing a request for change from the Client on a time and materials basis in accordance with its standard rates at that time.

9. In-put materials

9.1 The Client shall ensure that all In-Put Materials provided by it to Design Culture do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).

9.2 The Client shall indemnify Design Culture against all damages, losses and expenses arising as a result of any action or claim that the In-Put Materials constitute Inappropriate Content.

10. Charges and payment

10.1 Design for Print Services

10.1.1 Following delivery of the Printed Materials in accordance with clause 4.1, Design Culture shall issue an invoice in respect of the Design for Print Charges and in accordance with the Estimate and the Client shall pay such invoice within 30 days of the date of the invoice in accordance with this clause 10.1 and clause 10.4, except for any amount in respect of which there is a genuine dispute.

10.1.2 The Design for Print Charges are exclusive of VAT.

10.1.3 Design Culture reserves the right to submit interim invoices to the Client on a monthly basis where deemed necessary by Design Culture. In which case, such invoices will be payable within 30 days of the date of such invoice.

10.2 Website Design and Development Services

10.2.1 Following acceptance of the Site in accordance with clause 5.3, Design Culture shall issue an invoice in respect of the Website Design Charges and in accordance with the Estimate and the Client shall pay such invoice within 30 days of the date of the invoice in accordance with this clause 10.2 and clause 10.4, except for any amount in respect of which there is a genuine dispute.

10.2.2 The Website Design Charges are exclusive of VAT.

10.2.3 Design Culture reserves the right to submit interim invoices to the Client on a monthly basis where deemed necessary by Design Culture. In which case, such invoices will be payable within 30 days of the date of such invoice.

10.3 Software Development Services

10.3.1 Following acceptance of the Software in accordance with clause 6.6, Design Culture shall issue an invoice in respect of the Software Development Services and in accordance with the Estimate and the Client shall pay such invoice within 30 days of the date of the invoice in accordance with this clause 10.3 and clause 10.4, except for any amount in respect of which there is a genuine dispute.

10.3.2 The Software Development Charges are exclusive of VAT which the Client will pay in addition.

10.3.3 Design Culture reserves the right to submit interim invoices to the Client on a monthly basis where deemed necessary by Design Culture. In which case, such invoices will be payable within 30 days of the date of such invoice.

10.3.4 If Design Culture visits the Client’s premises at the Client’s request to investigate a failure of the Software, which proves in Design Culture’s reasonable opinion not to have been caused by a Defect, Design Culture may charge the Client for the time spent on such visit on a time-and-materials basis at its standard rates then in force.

10.4 General Payment Terms

10.4.1 Where Services are provided for a fixed price, the total price for the Services shall be the amount set out in the Estimate which may be amended from time to time in accordance with these Terms. All amounts due under these Terms shall be paid in full and without any deduction or withholding (other than any deduction or withholding of tax as required by law). The Client shall not be entitled to claim set-off or to counterclaim against Design Culture in relation to the payment of the whole or part of any such amount.

10.4.2 Without prejudice to any other right or remedy that it may have, if the Client fails to pay Design Culture on the due date, Design Culture may:

(a) charge interest on such sum from the due date for payment at the annual rate of 8% above the base rate from time to time of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; and

(b) suspend all Services until payment has been made in full.

10.4.3 Notwithstanding clause 10.4.2 (a), Design Culture may in the alternative claim interest at its discretion under the Late Payment of Commercial Debts (Interest) Act 1998.

10.4.4 All sums payable to Design Culture under these Terms shall become due immediately on its termination, despite any other provision. This clause 10.4.4 is without prejudice to any right to claim for interest under the law, or any such right under these Terms.

10.4.5 Subject always to the prior written approval of the Client in each case, reasonable out-of-pocket expenses may be charged by Design Culture on production of reasonable evidence of expenditure to the Client.

10.5 If the Client receives an invoice which it reasonably believes includes a sum which is not valid and properly due:

10.5.1 The Client shall notify Design Culture in writing as soon as reasonably practicable;

10.5.2 The Client shall pay the balance of the invoice which is not in dispute by the due date and the parties shall endeavour to resolve the query or dispute promptly;

10.5.3 To the extent that the Client is obliged, following resolution of the dispute, to pay an amount, then Design Culture may charge interest in accordance with clause 10.4.2 (a) above from the original due date until the date of payment;

10.5.4 To the extent that Design Culture is obliged to refund an amount to the Client, interest shall be added to that amount at a rate of 4% above the base rate of the Bank of England from time to time;

10.5.5 If the parties are unable to resolve the dispute promptly, the parties will follow the procedure set out in clause 19;

10.5.6 Once the dispute has been resolved, where either party is required to make a balancing payment, it shall do so within 14 days of the dispute being resolved in accordance with this clause 10 or clause 19, whichever is applicable.

11. Non-solicitation

11.1 The Client shall not, without the prior written consent of Design Culture, at any time from the date of these Terms to the expiry of 6 months after the completion of the Services directly or indirectly, solicit or entice away from Design Culture or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Design Culture in the provision of the Services.

12. Sub-contractors

12.1 Design Culture is permitted to use other persons to provide some or all of the Services.

12.2 Design Culture shall only be responsible for the work of a sub-contractor to the same standard as stated in these Terms.

13. Confidentiality

13.1 Both parties shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to it by the other party, its employees, agents, consultants or subcontractors and any other confidential information concerning that party’s business or its products which it may obtain.

13.2 Either party may disclose such information:

13.2.1 to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out its obligations under these Terms; and

13.2.2 as may be required by law, court order or any governmental or regulatory authority.

13.3 Both parties shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this clause 13.

13.4 Neither party shall use any such information for any purpose other than to perform its obligations under these Terms.

14. Warranties

14.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform these Terms.

14.2 Design Culture warrants that it will perform the Services with reasonable care and skill.

14.3 Design Culture provides no warranty that any result or objective can be or will be achieved or attained at all or by a given date for the completion of the Services.

15. Limitation of liability

15.1 This clause 15 sets out the entire financial liability of Design Culture (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Client in respect of:

15.1.1 any breach of these Terms, including any deliberate personal repudiatory breach;

15.1.2 any use made by the Client of the Services, the Deliverables or any part of them; and

15.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.

15.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Terms.

15.3 Nothing in these Terms limits or excludes the liability of Design Culture:

15.3.1 for death or personal injury resulting from negligence; or

15.3.2 for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by Design Culture.

15.4 Subject to clause 15.1and clause 15.2:

15.4.1 Design Culture shall not be liable for:

(a) loss of profits; or

(b) loss of business; or

(c) depletion of goodwill and/or similar losses; or

(d) loss of anticipated savings; or

(e) loss of goods; or

(f) loss of contract; or

(g) loss of use; or loss of corruption of data or information; or

(h) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and

15.4.2 Design Culture’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of these Terms, howsoever, shall be limited to and shall under no circumstances exceed the sum of £50,000 GBP.

15.5 If Design Culture’s performance of its obligations under these Terms is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, Design Culture shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.

15.6 The Client shall be liable to pay to Design Culture, on demand, all reasonable costs, charges or losses sustained or incurred by Design Culture that arise directly or indirectly from the Client’s fraud or negligence related to these Terms, subject to Design Culture confirming such costs, charges and losses to the Client in writing.

16. Termination

16.1 Subject to clause 16.3, these Terms shall terminate automatically on completion of the required Services in accordance with the applicable provisions of these Terms.

16.2 Without prejudice to any other rights or remedies which the parties may have, either party may terminate these Terms without liability to the other immediately on giving notice to the other if:

16.2.1 the other party fails to pay any amount due under these Terms on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment; or

16.2.2 the other party commits a material breach of any of the material terms of these Terms and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or

16.2.3 the other party repeatedly breaches any of the provisions of these Terms 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 provisions of these Terms; or

16.2.4 any distress or execution is levied on the other party’s property or if the other party has a receiver, administrator, administrative receiver or manager appointed over the whole or any part of its assets, becomes insolvent, compounds or makes any arrangement with its creditors, is the subject of a bankruptcy petition or order, or a petition is filed, a notice is given, a resolution is passed or an order is made for or in connection with the winding up of the other party or goes into liquidation or is unable to pay its debts as they fall due, or if the other party suffers any analogous proceeding under foreign law; or

16.2.5 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.

16.3 On termination of these Terms for any reason:

16.3.1 the Client shall immediately pay to Design Culture all of Design Culture’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Design Culture may submit an invoice, which shall be payable immediately on receipt;

16.3.2 the Client shall provide reasonable access to allow for the return of any physical items belonging to Design Culture which it has in its possession at the time of termination of these Terms if relevant; and

16.3.3 the accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.

16.3.4 if requested by the Client (and at the Client’s reasonable cost), Design Culture shall provide such additional services and assistance as are reasonably required by the Client to allow the Services to continue so far as possible without interruption, or to facilitate the orderly transfer of the Services to the Client or any replacement supplier (including any competitor of Design Culture) appointed by the Client. Design Culture shall also deliver to the Client any source code in the deliverables in the format and on the media reasonably specified by you.

17. Miscellaneous

17.1 Design Culture shall not be in breach of these Terms nor liable for delay in performing, or failure to perform, any of its obligations under these Terms if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.

17.2 Subject to clause 8, no variation of these Terms or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.

17.3 A waiver of any right or remedy under these Terms is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under these Terms or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.

17.4 No single or partial exercise of any right or remedy provided under these Terms or by law shall preclude or restrict the further exercise of any such right or remedy.

17.5 Unless specifically provided otherwise, rights arising under these Terms are cumulative and do not exclude rights provided by law.

17.6 If any provision of these Terms (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the agreement, and the validity and enforceability of the other provisions of the agreement shall not be affected.

17.7 If a provision of these Terms (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

17.8 These Terms together with the Brief, Estimate and any other documents referred to in it constitute the entire agreement between the parties and supersede and extinguish all previous drafts, arrangements, understandings or agreements between them, whether written or oral, relating to the subject matter of these Terms.

17.9 Each party acknowledges that, in entering into these Terms and the documents referred to in it, it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in these Terms or those documents. Each party agrees that its only liability in respect of those representations and warranties that are set out in these Terms or those documents (whether made innocently or negligently) shall be for breach of contract.

17.10 Nothing in this clause shall limit or exclude any liability for fraud.

17.11 The Client shall not, without the prior written consent of Design Culture, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under these Terms.

17.12 Design Culture may not at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under these Terms without the Client’s prior written consent not to be unreasonably withheld.

17.13 Each party that has rights under these Terms is acting on its own behalf and not for the benefit of another person.

17.14 A person who is not a party to these Terms shall not have any rights under or in connection with it.

17.15 Insurance. Design Culture shall have and maintain In force a suitable policy of Insurance, with a reputable Insurer, adequate to address the liabilities which may be likely to arise as a result of the provision of Its services with respect to the Client. The obligation to maintain Insurance shall apply throughout the duration of these Terms.

18. Notices

18.1 Any notice or other communication required to be given to a party under or in connection with these Terms shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or other next working day delivery service providing proof of delivery, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.

18.2 Any notice or communication shall be deemed to have been received if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address, or if sent by fax, at 9.00 am on the next Business Day after transmission, or otherwise at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.

18.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, “writing” shall not include e-mail.

19. Dispute resolution

19.1 If any dispute arises in connection with these Terms, Design Culture’s Manager and the Client’s Manager shall, within 10 days of a written request from one party to the other, meet in a good faith effort to resolve the dispute.

19.2 If the dispute is not resolved at that meeting, and if the parties agree, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation, a party must give notice in writing (ADR notice) to the other party requesting a mediation. A copy of the request should be sent to CEDR Solve. The mediation will start not later than 20 days after the date of the ADR notice.

19.3 Neither this clause 19 nor the commencement of a mediation will  prevent the parties commencing or continuing court proceedings.

20. Governing law and jurisdiction

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

20.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).

21. Data Protection

21.1 In this clause 21.1 The following definitions apply:

Data Protection Legislation means the Data Protection Act 2018, the UK General Data Protection Regulation (UK GDPR), the Privacy and Electronic Communications Regulations 2003, and all other applicable laws, enactments, regulations, orders, standards and other similar instruments, each as may be amended or superseded from time to time; and the terms “controller”, “processor”, “data subject”, “personal data”,” Commissioner” and “processing” bear the respective meanings given them in UK GDPR, and “data protection principles” means the data protection principles set out in Article 5 UK GDPR.

21.2 Design Culture shall:

a. process the personal data only in accordance with the Client’s documented instructions and applicable Data Protection Legislation;

b. ensure that persons authorised to process the personal data are subject to a duty of confidence or are under an appropriate statutory obligation of confidentiality;

c. use the personal data solely for the purpose for which it has been supplied by the Client as set out above and for no other purpose whatsoever;

d. only engage sub-processors with the prior consent of the Client (which shall include Kinsta as the hosting provider) and where such consent is given, ensure that any such sub-processor agrees to equivalent data protection obligations as set out in this Agreement, on the understanding that Design Culture remains fully liable to the Client for the performance of those obligations;

e. take all appropriate technical and organisational measures to keep the personal data confidential and secure (including to protect it against accidental or unlawful destruction, loss, or alteration, and against unauthorized disclosure or access);

f. not transfer the personal data to another country unless specifically authorized to do so by the Client;

g. notify the Client without undue delay upon receipt of any requests from individuals exercising their data subject rights, and provide reasonable assistance to the Client in responding to any such requests;

h. on termination or expiry of the Agreement destroy or transfer the personal data to the Client (or such other third party as the Client may lawfully direct), as directed by the Client. Design Culture shall promptly upon termination or expiry of the Agreement seek the Client’s instructions in this regard and shall provide to the Client fully documented confirmation of the steps taken; and

i. taking into account the nature of processing and all the available information, assist the Client to comply with its obligations under the Data Protection Legislation and make available to the Client all information necessary to demonstrate compliance with the obligations set out in this Agreement (including a record of all categories of data processing activities Design Culture carries out on behalf of the Client) and allow for and contribute to data audits, including inspections, if the Client so requires.

21.3 Design Culture shall, in the event of a personal data breach (or suspected breach) (within the meaning of UK GDPR), inform the Client without undue delay. This should include:

a. the nature of the personal data breach or suspected breach;

b. the date and time of occurrence;

c. the extent of the data and data subjects affected or potentially affected and the likely consequences of any breach;

d. measures taken or proposed to be taken by Design Culture (or its subprocessors) to contain the breach or suspected breach; and

e. any other information that the Client shall reasonably require in order to discharge its responsibilities under Data Protection Legislation in relation to such breach or suspected breach, including in respect of notifications to the Commissioner and/or the data subjects affected.

21.4 For the purposes of this clause, the data processing details are as follows:

– Nature and purpose of processing: To provide the Services;

– Duration of processing: for the term of this Agreement:

– Category of data subject: Client employees, customers, and contractors.

– Type of personal data: Data processed by the Client’s e-commerce website including customer contact details, orders and enquiries, technical information relating to the website user’s IP address, device and use of the website.