1. Definitions and interpretation

1.1 In these Conditions the following definitions apply:

Affiliate
means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;

Applicable Law
means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force whether local or national;

Bribery Laws
means the Bribery Act 2010 and all Applicable Laws in connection with bribery or anti-corruption;

Business Day
means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in England;

Change
means any change, amendment or alteration to the Specification, the Deliverable, or this Agreement;

Change Control Note
means a written note made in the manner of the form set out in the Schedule which details the proposed Change and the impact that the proposed Change will have on any part of the Specification, the Deliverables or this Agreement;

Client Content
means any Content owned, provided or made available to the Design Studio by the Client, but excluding any InDesign files or RAW files;

Client IPR Claim
has the meaning given to it in clause 14.6;

Conditions
means the Design Studio’s terms and conditions of sale set out in this document;

Confidential Information
means any commercial, financial or technical information, information relating to the Deliverables, plans, know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by the Client in performing its obligations under, or otherwise pursuant to the Contract;

Content
means all text, graphics, images, video, sound, data, software, and materials supplied in the Deliverables;

Contract
means the agreement between the Design Studio and the Client for the sale and purchase of the Deliverables incorporating these Conditions and the those of the Order made when the Client signed the Order Form, and including all the Condition’s schedules, attachments, annexures and statements of work;

Control
means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company and Controls, Controlled and under common Control shall be construed accordingly;

Controller
shall have the meaning given in applicable Data Protection Laws from time to time;

Client
means the named party in the Contract which has agreed to purchase the Deliverables from the Design Studio and whose details are set out in the Order;

Data Protection Laws
means, as binding on either party or the Deliverables:

(a) the GDPR;
(b) the Data Protection Act 2018;
(c) any laws which implement any such laws; and
(d) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;

Data Protection Supervisory Authority
means any regulator, authority or body responsible for administering Data Protection Laws;

Data Subject
shall have the meaning in applicable Data Protection Laws from time to time;

Deliverables
means the Goods or Services or both as the case may be;

Design Studio
Dexterous Designs Limited, a company incorporated in England and Wales whose registered number is 10413302 and whose registered office is at Smarter Capital, Crowood House, Gipsy Lane, Swindon, SN2 8YY;

Design Studio Content
means any Content developed by the Design Studio either before or during the term of this Agreement that is included in the Deliverables, as detailed in the Specification;

Design Studio IPR Claim
has the meaning given to it in clause 14.4;

Design Studio Personel
all employees, officers, staff, other workers, agents and consultants of the Design Studio, its Affiliates and any of their sub-contractors who are engaged in the performance of the Services from time to time;

Documentation
means any descriptions, instructions, manuals, literature, technical details or other related materials supplied in connection with the Deliverables;

Force Majeure
means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, pandemic, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including those involving the Design Studio’s or its suppliers’ workforce, but excluding the Client’s inability to pay or circumstances resulting in the Client’s inability to pay;

GDPR
means the General Data Protection Regulation, Regulation (EU) 2016/679, as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or of a part of the United Kingdom from time to time);

Goods
means the goods and related Documentation and other physical material set out in the Order  and to be supplied by the Design Studio to the Client in accordance with the Contract;

Intellectual Property Rights
means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in software, rights in Confidential Information, rights to invention, rights to sue for passing off, domain names and all other intellectual property rights and similar rights and, in each case:

(a) whether registered or not
(b) including any applications to protect or register such rights
(c) including all renewals and extensions of such rights or applications
(d) whether vested, contingent or future
(e) to which the relevant party is or may be entitled, and
(f) in whichever part of the world existing;

International Organisation
has the meaning given in the applicable Data Protection Laws from time to time;

Location
means the address or addresses for delivery of the Goods and performance of the Services as set out in the Order;

MSA Offence
has the meaning given in clause 11.2.1;

Order
means the Client’s order contained in the Order Form signed by the Client for the Deliverables;

Order Form
means the Order From signed by the Client containing the Order;

Personal Data
has the meaning given in the applicable Data Protection Laws from time to time;

Personal Data Breach
has the meaning given in the applicable Data Protection Laws from time to time;

Price
has the meaning given in clause 3.1;

Processing
has the meaning given to it in applicable Data Protection Laws from time to time (and related expressions, including process, processed, and processes shall be construed accordingly);

Processor
has the meaning given to it in applicable Data Protection Laws from time to time;

Protected Data
means Personal Data received from or on behalf of the Client in connection with the performance of the Design Studio’s obligations under the Contract;

Services
means the services set out in the Order and to be supplied by the Design Studio to the Client in accordance with the Contract;

Specification
means the description or Documentation provided for the Deliverables set out or referred to in the Contract; 

Sub-Processor
means any agent, subcontractor or other third party (excluding its employees) engaged by the Design Studio for carrying out any processing activities on behalf of the Client in respect of the Protected Data;

Third Party Content
means any Content owned or licensed by a third party either before or during the term of this Agreement, as detailed in the Specification, including Third Party Software (if any);

VAT
means value added tax under the Value Added Tax Act 1994 or any other similar sale or fiscal tax applying to the sale of the Deliverables; and

Warranty Period
has the meaning given in clause 9.1.

1.2 In these Conditions, unless the context otherwise requires:

1.2.1 a reference to the Contract includes these Conditions, the Order, and their respective schedules, appendices and annexes (if any);

1.2.2 any clause, schedule or other headings in these Conditions are included for convenience only and shall have no effect on the interpretation of these Conditions;

1.2.3 a reference to a ‘party’ means either the Design Studio or the Client and includes that party’s personal representatives, successors and permitted assigns;

1.2.4 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;

1.2.5 a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;

1.2.6 a reference to a gender includes each other gender;

1.2.7 words in the singular include the plural and vice versa;

1.2.8 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;

1.2.9 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form including email);

1.2.10 without prejudice to the provisions of clause 16, a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of a party under the Contract; 

1.2.11 without prejudice to the provisions of clause 16, a reference to legislation includes all subordinate legislation made from time to time under that legislation; and

1.2.12 a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.

2. Application of these conditions

2.1 These Conditions apply to and form part of the Contract between the Design Studio and the Client. They supersede any previously issued terms and conditions of purchase or supply.

2.2 No other terms or conditions other than those contained in the Contract shall form part of the Contract except to the extent that the Design Studio otherwise agrees in writing.

2.3 No variation of these Conditions or to an Order or to the Contract, shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of the Client and the Design Studio respectively.

2.4 The Design Studio may issue quotations to the Client from time to time. Quotations are invitations to treat only and are not contained in the Order Form. They are not an offer to supply Deliverables and are incapable of being accepted by the Client.

2.5 Marketing and other promotional material relating to the Deliverables are illustrative only and do not form part of the Contract.

3. Price

3.1 The price for the Deliverables shall be as set out in the Order in accordance with the terms set out in this Agreement including its Schedule(the Price). 

3.2 The Prices are exclusive of:

3.2.1 packaging, delivery, insurance, shipping carriage, and all other related charges or taxes or describe relevant elements of the goods and services which are not included in the standard price which shall be charged in addition at the Design Studio’s standard rates, and

3.2.2 VAT.

3.3 The Client shall pay any applicable VAT to the Design Studio on receipt of a valid VAT invoice.

3.4 The parties agree that the Price for the Deliverables are fixed and set out in the Order in accordance with the terms set out in Schedule and the Order Form.

4. Payment

4.1 The Design Studio shall invoice the Client electronically to the email address notified by the Client in writing to the Design Studio as set out in the Order for all sums due under this Agreement in accordance with the terms set out in the Order and in The Schedule.

4.2 The Client shall pay all invoices:

4.2.1 in full without deduction or set-off, in cleared funds within 30 calendar days of the date of each invoice; and

4.2.2 to the bank account nominated by the Design Studio.

4.3 Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:

4.3.1 the Design Studio may, without limiting its other rights, charge interest on such sums at 8% a year above the base rate of Bank from time to time in force, and

4.3.2 interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.

4.4 Notwithstanding any interest payable by the Client under clauses 4.3.1 and 4.3.2, if the Client’s bank fails to pay on the Client’s behalf any amount agreed under a direct debit to the Design Studio, in accordance with the terms and conditions set out in the Order Form, the Client will pay to the Design Studio on demand for each such failure the sum set out in the Order Form as liquidated damages.

4.5 The liquidated damages payments set out in the Order Form and in clause 4.4 do not impose a detriment on the Client which is disproportionate to the legitimate interests of Design Studio in the enforcement of the obligations of the Client to the Design Studio to pay on time in accordance with the terms of this Agreement and are without prejudice to the Client’s obligation to fulfil its obligations under this Agreement if it is reasonably able to do so.

5. Client obligations

5.1 The Client shall provide or procure for the Design Studio and/or the Design Studio Personnel:

5.1.1 any Client Content at the time and in the format required by the Specification;

5.1.2 responses to the reasonable requests of the Design Studio for relevant information, instructions and assistance, including reasonable access to and cooperation by the Client personnel; and

5.1.3 reasonable access to Client software, systems and data where strictly necessary for the purposes of this Agreement;

5.2 The Client undertakes to ensure that any software which the Design Studio is asked by the Client to use or modify for the purposes of performing the Design Studio’s obligations is either the property of the Client or is legally licensed to the Client and that the Design Studio is authorised to use the same.

5.3 The Deliverables are provided at the Client’s request and the Client is responsible for verifying that the Deliverables are suitable for its own needs, including:

5.3.1 that the Client, and not the Design Studio, is responsibly solely for proof reading of any and all written content of the Deliverables to ensure and verify that all such written content is error free;

5.3.2 any errors which the Client does not bring to the attention in a timely manner shall be the sole responsibility of the Client;

5.3.3 the Design Studio shall not be responsible for correcting any errors in the written content of the Deliverables which have not been brought to its attention in accordance with clause 5.3.2;

5.3.4 the Client must make any corrections to errors which its proof reading of the Deliverables’ written content has revealed in a timely manner and submit those corrections to Design Studio within 2 working days of the Client discovering those errors and in any event within one week of the delivery of the Deliverables to the Client by the Design Studio;

5.3.5 if the Client chooses not to follow any advice of the Design Studio in regard to the creation and content of the Deliverables then the Design Studio shall not be responsible for any adverse outcome resulting from the Client not following the Design Studio’s advice.

5.4 The Client shall respond to Design Studio communications in a timely manner, co-operate fully with the Design Studio in the performance of this Agreement in a timely manner, and the Client shall meet all its obligations under this Agreement in a timely manner.

5.5 In addition to any other material breach of this Agreement, a persistent breach of clause 5.4 shall be a material breach of this Agreement.

5.6 In accordance with clause the provisions of clause 18.1.1, if the Client is in material breach of clause 5.4 and, if that breach is capable of remedy, the Client fails to remedy the breach within one calendar month and/or the provision of the Deliverables is delayed and/or hindered for a period of one calendar month or more because of the Client’s breach of this Agreement, then the Design Studio may terminate this Agreement with immediate effect and the balance of all Fees payable under this Agreement shall become due and the Client shall pay those Fees, in full, in accordance with clause 4 of this Agreement.

5.7 The Client shall have the right to cancel the provision of the Deliverables or any part of the Deliverables if it has not yet been, in the case of goods, commissioned for, and in the case of services, performed for, the Client.

5.8 Subject to any exercise of the Design Studio’s discretion under clause 5.9, if the Client chooses to cancel the provision of the Deliverables under clause 22.1, then the Client shall pay to the Design Studio all Fees payable under this Agreement.

5.9 Entirely at the discretion of the Design Studio, the Design Studio may, instead of requiring the Client to pay all Fees due under this Agreement, require the Client, in relation to the provision of the Deliverables being cancelled or part-cancelled under clause 5.7, to pay for:

5.9.1 in respect of any goods forming part of the Deliverables, that part of the Fees which relate to the goods within the Deliverables which at the time of cancellation have been commissioned for the Client; and

5.9.2 in respect of any goods forming part of the Deliverables, the costs of materials which the Design Studio has purchased to undertake the provision of the Deliverables; and

5.9.3 in respect of any services forming part of the Deliverables, that part of the Fees that relate to the services which, at the time of cancellation have been paid for or contractually committed by the Design Studio.

5.10 Entirely at the discretion of the Design Studio, the Design Studio may choose to agree with the Client an amount in lieu of the Fees payable under clause 5.8 that the Client shall pay upon the Client’s cancellation of the Project or any part of the Project under clause 5.7.

6. Delivery and performance

6.1 The Goods shall be delivered by the Design Studio, or its nominated carrier, to the Location on the date(s) specified in the Order. 

6.2 The Goods shall be deemed delivered on arrival only of the Goods at the Location by the Design Studio or its nominated carrier (as the case may be).

6.3 The Services shall be performed by the Design Studio at the Location on the date(s) specified in the Order. 

6.4 The Services shall be deemed delivered by the Design Studio only on completion of the performance of the Services at the Location.

6.5 The Client shall not be entitled to reject a delivery of the Goods on the basis that an incorrect volume of the Goods has been supplied.

6.6 The Design Studio may deliver the Goods or perform the Services in instalments. Any delay or defect in an instalment shall not entitle the Client to cancel any other instalment.

6.7 Each delivery or performance of the Deliverables shall be accompanied by a delivery note stating:

6.7.1 the date of the Order;

6.7.2 the relevant Client and Design Studio details;

6.7.3 if Goods, the type and quantity of Goods in the consignment;

6.7.4 if Services, the category, type and quantity of Services performed;

6.7.5 any special instructions, handling and other requests.

6.8 Time is not of the essence in relation to the performance or delivery of the Deliverables. The Design Studio shall use its reasonable endeavours to meet estimated dates for delivery and performance, but any such dates are indicative only. 

6.9 The Design Studio shall not be liable for any delay in or failure of performance caused by:

6.9.1 the Client’s failure to make the Location available;

6.9.2 the Client’s failure to prepare the Location in accordance with the Design Studio’s instructions and/or as required for the Deliverables;

6.9.3 the Client’s failure to provide the Design Studio with adequate instructions for performance or delivery or otherwise relating to the Deliverables;

6.9.4 Force Majeure.

6.10 If the Client fails to accept delivery of the Goods the Design Studio shall store and insure the Goods pending delivery, and the Client shall pay all reasonable storage and insurance costs and expenses incurred by the Design Studio in doing so.

6.11 If 30 Business Days following the due date for delivery or collection of the Goods, the Client has not taken delivery of or collected them, the Design Studio may resell or otherwise dispose of the Goods without any obligation or liability to the Client, except as provided for in clauses 6.11.1 and 6.11.2. The Design Studio shall:

6.11.1 deduct all reasonable storage charges and costs of resale; and

6.11.2 account to the Client for any excess of the resale price over, or invoice the Client for any shortfall of the resale price below, the Price paid by the Client for the Goods.

7. Risk

Risk in the Goods shall pass to the Client on delivery.

8. Title

8.1 Title to the Goods shall pass to the Client once the Design Studio has received payment in full and cleared funds for the Goods.

8.2 Until title to the Goods has passed to the Client, the Client shall:

8.2.1 hold the Goods as bailee for the Design Studio;

8.2.2 store the Goods separately from all other material in the Client’s possession;

8.2.3 take all reasonable care of the Goods and keep them in the condition in which they were delivered;

8.2.4 insure the Goods from the date of delivery: (i) with a reputable insurer (ii) against all risks (iii) for an amount at least equal to their Price (iv) noting the Design Studio’s interest on the policy;

8.2.5 ensure that the Goods are clearly identifiable as belonging to the Design Studio;

8.2.6 not remove or alter any mark on or packaging of the Goods;

8.2.7 inform the Design Studio immediately if becomes subject to any of the events or circumstances set out in clauses 18.1.2 and 18.7.4; and

8.2.8 on reasonable notice permit the Design Studio to inspect the Goods during the Client’s normal business hours and provide the Design Studio with such information concerning the Goods as the Design Studio may request from time to time.

8.3 If, at any time before title to the Goods has passed to the Client, the Client informs the Design Studio, or the Design Studio reasonably believes, that the Client has or is likely to become subject to any of the events specified in clauses 18.1.2, the Design Studio may:

8.3.1 require the Client at the Client’s expense to re-deliver the Goods to the Design Studio; and

8.3.2 if the Client fails to do so promptly, enter any premises where the Goods are stored and repossess them.

9. Warranty

9.1 The Design Studio warrants that the Deliverables shall:

9.1.1 conform in all material respects to any sample, their description and to the Specification;

9.1.2 be free from material defects in design, material and workmanship;

9.1.3 if Goods, be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and

9.1.4 if Services, be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II, s 13; and

9.1.5 any media on which the results of the Services are supplied shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.

9.2 The Client warrants that it has provided the Design Studio with all relevant, full and accurate information necessary for the Design Studio to perform the Contract satisfactorily.

9.3 As the Client’s sole and exclusive remedy, the Design Studio shall, at its option, correct, repair, remedy, re-perform or refund the Deliverables that do not comply with clause 9, provided that the Client:

9.3.1 serves a written notice on Design Studio not later than five Business Days from delivery or performance in the case of defects discoverable by a physical inspection, or within a reasonable period of time from delivery or performance in the case of latent defects;

9.3.2 such notice specifies that some or all of the Deliverables do not comply with clause 9.1 and identifying in sufficient detail the nature and extent of the defects; and

9.3.3 gives the Design Studio a reasonable opportunity to examine the claim of the defective Deliverables.

9.4 The provisions of these Conditions shall apply to any Deliverables that are corrected, repaired, remedied or re-performed with effect from delivery or performance of those Deliverables.

9.5 The Design Studio shall not be liable for any failure of the Goods to comply with clause 9.1:

9.5.1 where such failure arises by reason of wear and tear, wilful damage, negligence, or could be expected to arise in the normal course of use of the Goods;

9.5.2 to the extent caused by the Client’s failure to comply with the Design Studio’s instructions in relation to the Goods, including any instructions on installation, operation, storage or maintenance;

9.5.3 to the extent caused by the Design Studio following any specification, instruction or requirement of or given by the Client in relation to the Goods;

9.5.4 where the Client modifies any Goods without the Design Studio’s prior written consent or, having received such consent, not in accordance with the Design Studio’s instructions; or

9.5.5 where the Client uses any of the Goods after notifying the Design Studio that they do not comply with clause 9.1.

9.6 Except as set out in this clause 9:

9.6.1 the Design Studio gives no warranty and makes no representations in relation to the Deliverables; and

9.6.2 shall have no liability for their failure to comply with the warranty in clause 9.1, and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982 and ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted.

10. Anti-bribery

10.1 For the purposes of this clause 10 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.

10.2 Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable endeavours to ensure that:

10.2.1 all of that party’s personnel;

10.2.2 all others associated with that party; and

10.2.3 all of that party’s subcontractors; involved in performing the Contract so comply.

10.3 Without limitation to clause 10.2, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.

10.4 The Client shall immediately notify the Design Studio as soon as it becomes aware of a breach by the Client of any of the requirements in this clause 10.

10.5 Any breach of this clause 10 by the Client shall be deemed a material breach of the Contract that is not remediable and shall entitle the Design Studio to immediately terminate the Contract by notice under clause 18.1.1.

11. Anti-slavery

11.1 The Design Studio shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy.

11.2 The Client undertakes, warrants and represents that:

11.2.1 neither the Client nor any of its officers, employees, agents or subcontractors has:

(a) committed an offence under the Modern Slavery Act 2015 (an MSA Offence); or
(b) been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or
(c) is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;

11.2.2 it shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy;

11.2.3 it has implemented due diligence procedures to ensure compliance with the Modern Slavery Act 2015 and the Modern Slavery Policy in its business and supply chain, and those of its officers, employees, agents or subcontractors, which will be made available to the Design Studio on request at any time throughout the Contract;

11.3 The Client shall notify the Design Studio immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of the Client’s obligations under clause 11.2. Such notice to set out full details of the circumstances concerning the breach or potential breach of the Client’s obligations.

11.4 Any breach of clause 11.2 by the Client shall be deemed a material breach of the Contract and shall entitle the Design Studio to terminate the Contract with immediate effect.

12. Indemnity and insurance

12.1 The Client shall indemnify, and keep indemnified, the Design Studio from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Design Studio as a result of or in connection with the Client’s breach of any of the Client’s obligations under the Contract

13. Limitation of liability

13.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 13.

13.2 Subject to clauses 13.5 and 13.6, the Design Studio’s total liability shall not exceed the sum of the Fees due under this Agreement.

13.3 Subject to clauses 13.5 and 13.6, the Design Studio shall not be liable for consequential, indirect or special losses.

13.4 Subject to clauses 13.5 and 13.6, the Design Studio shall not be liable for any of the following (whether direct or indirect):

13.4.1 loss of profit;

13.4.2 loss of revenue;

13.4.3 loss or corruption of data;

13.4.4 loss or corruption of software or systems;

13.4.5 loss or damage to equipment;

13.4.6 loss of use;

13.4.7 loss of production;

13.4.8 loss of contract;

13.4.9 loss of commercial opportunity;

13.4.10 loss of savings, discount or rebate (whether actual or anticipated); 

13.4.11 harm to reputation or loss of goodwill; and/or

13.4.12 wasted expenditure.

13.5 The limitations of liability set out in clauses 13.2 to 13.4 shall not apply in respect of any indemnities given by the Client under the Contract.

13.6 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:

13.6.1 death or personal injury caused by negligence;

13.6.2 fraud or fraudulent misrepresentation;

13.6.3 any other losses which cannot be excluded or limited by Applicable Law;

13.6.4 any losses caused by wilful misconduct.

14. Intellectual property and Indemnity

14.1 In consideration of the full amount of the Fees payable under this Agreement, and only after the Client has paid to the Design Studio the full amount of all Fees and monies due to the Design Studio under this Agreement, the Design Studio assigns to the Client the Design Studio’s Intellectual Property Rights in the Content, Specification, user documentation (including the Documentation) and all other materials created or obtained by the Design Studio exclusively for the Client for the Deliverables pursuant to this Agreement, provided that:

14.1.1 all Client Content shall remain the property of the Client or its licensors, and the Client grants to the Design Studio a non-exclusive, non-transferrable, royalty-free licence of such of the Client’s Intellectual Property Rights in the Client Content as is necessary for the Design Studio to fulfil its obligations under this Agreement and as is necessary in order for the Design Studio to advertise, on its own website and on social media channels and otherwise, the goods and services provided as part of the Deliverables by the Design Studio;

14.1.2 the Client shall grant to the Design Studio a non-exclusive, non-transferrable, royalty-free licence (or sublicence ( as the case may be) of the Design Studio’s Intellectual Property Rights in the Content, Specification, user documentation (including the Documentation) and all other materials created or obtained by the Design Studio exclusively for the Client for the Deliverables pursuant to this Agreement which have been assigned to the Client by the Design Studio necessary in order for the Design Studio to advertise, on its own website, on social media channels and otherwise, the goods and services contained in the Deliverables and provided under this Agreement by the Design Studio;

14.1.3 except for any Content created or obtained, and supplied to the Client, by the Design Studio exclusively for the Client as part of the Deliverables, all Design Studio Content and Third Party Content shall remain the property of the Design Studio or its licensors (as the case may be) and, subject to the Client’s compliance with the terms of this Agreement including payment of all Fees, the Design Studio grants to the Client a non-exclusive, non-transferable, royalty-free licence (or sublicence (as the case may be)) of such of the Design Studio’s Intellectual Property Rights in the Design Studio Content and of such of the Third Party Content as is necessary for the Client to fulfil its obligations under this Agreement and to enable the Client to make use of the Deliverables, which licence or sublicence:

(a) in the case of software, shall be a licence of object code only unless otherwise expressly provided;
(b) in the case of Third Party Content it shall be on such terms as the Design Studio may grant in accordance with the terms between the Design Studio and the Third Party Content owner; and
(c)s hall be to the extent and for the purpose only of using the Deliverables in the ordinary course of the Client’s business for the purposes of fulfilling the terms of this Agreement.

14.2 Except as expressly agreed in this clause 14, no Intellectual Property Rights of either party are transferred or licensed as a result of this Agreement.

14.3 Subject to the foregoing, the Design Studio 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 this Agreement provided always that such skills, techniques or know-how do not infringe the Client’s Intellectual Property Rights now or in the future or disclose or breach the confidentiality of the other party’s Confidential Information.

14.4 The Design Studio shall indemnify, keep indemnified and hold harmless the Client from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Client as a result of or in connection with any action, demand or claim that use or possession of the Deliverables (excluding any Client Content), infringes the Intellectual Property Rights of any third party (Design Studio IPR Claim), provided that the Design Studio shall have no such liability if the Client:

14.4.1 does not notify the Design Studio in writing setting out full details of any Design Studio IPR Claim of which it has notice as soon as is reasonably possible;

14.4.2 makes any admission of liability or agrees any settlement or compromise of the relevant Design Studio IPR Claim without the prior written consent of the Design Studio (which shall not be unreasonably withheld or delayed);

14.4.3 does not let the Design Studio at its request and own expense have the conduct of or settle all negotiations and litigation arising from the relevant Design Studio IPR Claim; 

14.4.4 does not, at the Design Studio’s request and own expense, give the Design Studio all reasonable assistance in the circumstances described above; or

14.4.5 uses the Deliverables in combination with any other goods or services, which without such combination, no IPR Claim could or would have been made.

14.5 If any Design Studio IPR Claim is made or is reasonably likely to be made against the Client relating to any Software, the Design Studio shall promptly and at its own expense either:

14.5.1 procure for the Client the right to continue using and possessing the relevant Deliverables; or

14.5.2 modify or replace the infringing part of the Deliverables and without adversely affecting the functionality of the Deliverables as set out in this Agreement so as to avoid the infringement or alleged infringement,

provided that if, the Design Studio having used its reasonable endeavours, neither of the above can be accomplished on reasonable terms, the Design Studio shall (without prejudice to the indemnity above) refund the Fees paid by the Client in respect of the affected Software.

14.6 The Client shall indemnify, keep indemnified and hold harmless the Design Studio from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Design Studio as a result of or in connection with any action, demand or claim that use or possession of any of the Client Content infringes the Intellectual Property Rights of any third party (Client IPR Claim), provided that the Client shall have no such liability if the Design Studio:

14.6.1 does not notify the Client in writing setting out full details of any Client IPR Claim of which it has notice as soon as reasonably possible;

14.6.2 makes any admission of liability or agrees any settlement or compromise of the relevant Client IPR Claim without the prior written consent of the Client (which shall not be unreasonably withheld or delayed);

14.6.3 does not let the Client, at its request and own expense have the conduct of or settle all negotiations and litigation arising from the relevant Client IPR Claim;

14.6.4 does not, at the Client’s request and cost give the Client all reasonable assistance in the circumstances described above; 

14.6.5 does not take all reasonable steps to minimise the losses that may be incurred by it or by any third party as a result of the Client IPR Claim.

14.7 If any Client IPR Claim is made or is reasonably likely to be made against the Design Studio, the Client shall promptly and at its own expense either:

14.7.1 procure for the Design Studio the right to continue using the Client Content to enable it to provide the Deliverables; or

14.7.2 modify or replace the infringing part of the Deliverables so as to avoid the infringement or alleged infringement, provided the Deliverables remain in material conformance to their Specification.

14.8 The indemnity given by the Client above shall not apply to any infringement arising from any modification to Client Content made by the Design Studio or any employee, agent or Design Studio of the Design Studio without the authorisation of the Client or in breach of this Agreement.

14.9 The Design Studio’s obligations under clause 14.6 shall not apply to Deliverables modified or used by the Client other than in accordance with the Contract or the Design Studio’s instructions. The Client shall indemnify the Design Studio against all losses, damages, liability, costs and expenses (including reasonable legal fees) incurred by the Design Studio in connection with any claim arising from such modification or use.

15. Confidentiality and announcements

15.1 The Client shall keep confidential all Confidential Information of the Design Studio and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:

15.1.1 any information which was in the public domain at the date of the Contract;

15.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;

15.1.3 any information which is independently developed by the Client without using information supplied by the Design Studio; or

15.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract. 

except that the provisions of clauses 15.1.1 to 15.1.3 shall not apply to information to which clause 15.4 relates.

15.2 This clause shall remain in force in perpetuity.

15.3 The Client shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.

15.4 To the extent any Confidential Information is Protected Data such Confidential Information may be disclosed or used only to the extent such disclosure or use is in compliance with and does not conflict with any provisions of clause 16.

16. Processing of personal data

16.1 The parties agree that the Client is a Controller and that the Design Studio is a Processor for the purposes of processing Protected Data pursuant to the Contract. The Client shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Client shall ensure all instructions given by it to the Design Studio in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with Data Protection Laws. Nothing in the Contract relieves the Client of any responsibilities or liabilities under any Data Protection Laws.

16.2 The Design Studio shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of the Contract.

16.3 The Client shall indemnify and keep indemnified the Design Studio against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a Data Protection Supervisory Authority) arising out of or in connection with any breach by the Client of its obligations under this clause 16.

16.4 The Design Studio shall:

16.4.1 only process (and shall ensure Design Studio Personnel only process) the Protected Data in accordance with the schedule and the Contract (including when making any transfer to which clause 16.10 relates), except to the extent: 

(a) that alternative processing instructions are agreed between the parties in writing; or
(b) otherwise required by applicable law (and shall inform the Client of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and

16.4.2 without prejudice to clause 16.1, if the Design Studio believes that any instruction received by it from the Client is likely to infringe the Data Protection Laws it shall promptly inform the Client and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing. 

16.5 The Design Studio shall implement and maintain the technical and organisational measures set out in Part C of the schedule to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.

16.6 The Design Studio shall:

16.6.1 not permit any processing of Protected Data by any Sub-Processor without the prior specific written authorisation of the Client; 

16.6.2 prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this clause 16 (including those relating to sufficient guarantees to implement appropriate technical and organisational measures) that is enforceable by the Design Studio and ensure each such Sub-Processor complies with all such obligations;

16.6.3 remain fully liable to the Client under the Contract for all the acts and omissions of each Sub-Processor as if they were its own; and

16.6.4 ensure that all natural persons authorised by the Design Studio or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.

16.7 The Client authorises the appointment of the Sub-Processors listed in the Order Form.

16.8 The Client shall reply to any communication from the Design Studio requesting any further prior specific authorisation of a Sub-Processor pursuant to clause 16.6.1 promptly and in any event within 10 Business Days of request from time to time. The Client shall not unreasonably withhold, delay or condition any such authorisation.

16.9 The Design Studio shall (at the Client’s cost):

16.9.1 assist the Client in ensuring compliance with the Client’s obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the processing and the information available to the Design Studio; and

16.9.2 taking into account the nature of the processing, assist the Client (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Client’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.

16.10 The Design Studio shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to any country or territory outside the United Kingdom or to any International Organisation without the prior written authorisation of the Client.

16.11 The Design Studio shall at the Client’s cost and expense refer to the Client all requests it receives for exercising any Data Subjects’ rights under Chapter III of the GDPR which relate to any Protected Data. It shall be the Client’s responsibility to reply to all such requests as required by applicable law.

16.12 The Design Studio shall, in accordance with Data Protection Laws, make available to the Client such information that is in its possession or control as is necessary to demonstrate the Design Studio’s compliance with the obligations placed on it under this clause 16 and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Client (or another auditor mandated by the Client) for this purpose (subject to a maximum of one audit request in any 12 month period under this clause 16.12).

16.13 On the end of the provision of the Services relating to the processing of Protected Data, at the Client’s cost and the Client’s option, the Design Studio shall either return all of the Protected Data to the Client or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires the Design Studio to store such Protected Data. This clause 16 shall survive termination or expiry of the Contract.

17. Force majeure

Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such the event causes a delay or failure in performance and when it ceases to do so. If the Force Majeure event continues for a continuous period of more than three months, the party not affected may terminate the Contract by written notice to the other party.

18. Termination

18.1 Either party may without prejudice to its other rights and remedies by notice in writing to the other party immediately terminate this Agreement if the other:

18.1.1 is in material or persistent breach of any of its obligations under this Agreement and if that breach is capable of remedy and the other has failed to remedy that breach within one calendar month after receiving written notice requiring it to remedy that breach; or

18.1.2 is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes subject to a moratorium under Part A1 of the Insolvency Act 1986 or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or becomes subject to a restructuring plan under Part 26A of the Companies Act 2006 or a scheme of arrangement under Part 26 of the Companies Act 2006 or any analogous event occurs in any applicable jurisdiction.

18.2 The Client may without prejudice to its other rights and remedies by notice in writing to the Design Studio immediately terminate this Agreement:

18.2.1 if the Design Studio ceases or threatens to cease carrying on business in the United Kingdom; or

18.2.2 if the Design Studio or any of its Associates undergo a change of Control that is in the Client’s reasonable opinion likely to have a material adverse effect on the Client or the provision of the Deliverables.

18.3 A party may by notice in writing terminate this Agreement if permitted to do so under the Agreement.

18.4 In the event of termination of this Agreement for any reason, and without prejudice to any additional obligations under clause 16 or the Schedule, each party shall:

18.4.1 within seven days of such termination return (or, at the other party’s option, destroy) all the other party’s Confidential Information in its possession or under its control and all copies of such information; and

18.4.2 perform their respective obligations with respect to exit management as set out in this Agreement.

18.5 In the event that the Design Studio reasonably believes that the Client has behaved in a way that in the reasonable opinion of the Design Studio is abusive or threatening towards the Design Studio and/or the Design Studio Personnel, then the Design Studio may terminate this Agreement immediately and the Client shall pay all Fees due to the Design Studio under this Agreement within 30 calendar days in accordance with clause 18.3.

18.6 Termination of this Agreement for whatever reason shall not operate to affect any provisions that are expressly, or by implication, intended by the parties to survive termination.

18.7 The Design Studio may terminate the Contract at any time by giving notice in writing to the Client if:

18.7.1 the Client commits a material or persistent breach of any of its obligations under this Agreement and such breach is not remediable;

18.7.2 the Client commits a material or persistent breach of the Contract which is not remedied within one calendar month of receiving written notice requiring the Client to remedy the breach;

18.7.3 the Client has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within one calendar month after the Design Studio has given notification that the payment is overdue; or

18.7.4 any consent, licence or authorisation held by the Client is revoked or modified such that the Client is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.

18.8 The Design Studio may terminate the Contract at any time by giving not less than four weeks’ notice in writing to the Client if the Client undergoes a change of Control or if it is realistically anticipated that it shall undergo a change of Control within two months.

18.9 The right of the Design Studio to terminate the Contract pursuant to clause 18.10 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to the Contract.

18.10 If the Client becomes aware that any event has occurred, or circumstances exist, which may entitle the Design Studio to terminate the Contract under this clause 18, it shall immediately notify the Design Studio in writing.

18.11 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Design Studio at any time up to the date of termination.

19. Notices

19.1 Any notice given by a party under these Conditions shall:

19.1.1 be in writing and in English;

19.1.2 be signed by, or on behalf of, the party giving it (except for notices sent by email); and

19.1.3 be sent to the relevant party at the address set out in the Contract

19.2 Notices may be given, and are deemed received:

19.2.1 by hand: on receipt of a signature at the time of delivery;

19.2.2 by Royal Mail Recorded Signed For post: at 9.00 am on the second Business Day after posting;

19.2.3 by Royal Mail International Signed post: at 9.00 am on the fourth Business Day after posting; and

19.2.4 by email: on receipt of a delivery email from the correct address.

19.3 Any change to the contact details of a party as set out in the Contract shall be notified to the other party in accordance with clause 19.1 and shall be effective:

19.3.1 on the date specified in the notice as being the date of such change; or

19.3.2 if no date is so specified, 3 Business Days after the notice is deemed to be received.

19.4 All references to time are to the local time at the place of deemed receipt.

19.5 This clause does not apply to notices given in legal proceedings or arbitration.

19.6 A notice given under these Conditions is validly served if sent by email.

20. Cumulative remedies

The rights and remedies provided in the Contract for the Design Studio only are cumulative and not exclusive of any rights and remedies provided by law.

21. Time

Unless stated otherwise, time is of the essence for any date or period specified in the Contract in relation to the Client’s obligations only.

22. Further assurance

The Client shall at the request of the Design Studio, and at the Client’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.

23. Entire agreement

23.1 The parties agree that the Contract constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.

23.2 Each party acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.

23.3 Nothing in these Conditions purports to limit or exclude any liability for fraud.

24. Variation and Change Control

24.1 Subject to the remaining provisions of this clause 24, no variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, each party.

24.2 All amendments or variations or other changes to the Deliverables, the Specification, or this Agreement shall be made in accordance with the following Change Control Procedure. Either party may submit at any time a request for Change to the other party.

24.3 Where the Design Studio originates a Change, it shall provide with the Change request, a Change Control Note.

24.4 Where the Client originates a proposed Change, it shall provide the Design Studio with such information (as is within the Client’s reasonable possession or control) which the Design Studio reasonably considers is relevant to such Change or may assist the Design Studio in the preparation of the Change Control Note. The Design Studio shall provide the Client with a Change Control Note within ten Business Days of receiving the request for a Change (or such other period as may be agreed between the parties).

24.5 The recipient of a Change request shall act reasonably and in good faith in deciding whether to accept or decline it in its sole discretion, but in any event shall do so within ten Business Days of receipt of the Change request (or such later time as may be agreed between the parties) indicating acceptance of the Change, or setting out in full its reasons for declining.

24.6 Where the Client and the Design Studio agree to implement a Change, the costs of implementing a Change shall be paid in accordance with the provisions of the Schedule in addition to the amounts due for providing the Deliverables as set out in the Change Control Note, except where the parties (acting reasonably) agree in writing that the Change is attributable to some act or default of the Design Studio or Design Studio Personnel in which case the Change shall be at the Design Studio’s expense.

24.7 The parties shall have no obligations in respect of a Change Control Note unless they expressly agree to do so by them both executing the Change Control Note or otherwise agree to do so in writing.

25. Assignment

25.1 The Client may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the Design Studio’s prior written consent.

25.2 Notwithstanding clause 25.1, the Client may perform any of its obligations and exercise any of its rights granted under the Contract through any Affiliate provided that it gives the Design Studio prior written notice of such subcontracting or assignment including the identity of the relevant Affiliate. The Client acknowledges and agrees that any act or omission of its Affiliate in relation to the Client’s rights or obligations under the Contract shall be deemed to be an act or omission of the Client itself.

26. Set off

26.1 The Design Studio shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Client under the Contract or under any other contract which the Design Studio has with the Client.

26.2 The Client shall pay all sums that it owes to the Design Studio under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

27. No partnership or agency

The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.

28. Equitable relief

The Client recognises that any breach or threatened breach of the Contract may cause the Design Studio irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Design Studio, the Client acknowledges and agrees that the Design Studio is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.

29. Severance

29.1 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.

29.2 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with the minimum such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

30. Waiver

30.1 No failure, delay or omission by the Design Studio in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.

30.2 No single or partial exercise of any right, power or remedy provided by law or under the Contract by the Design Studio shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Design Studio.

31. Compliance with law

The Client shall comply with Applicable Law and shall maintain such licences, authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.

32. Conflicts within contract

If there is a conflict between the terms contained in the Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the Conditions and of Part B and Part C of the schedule shall prevail to the extent of the conflict.

33. Costs and expenses

The Client shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (and any documents referred to in it).

34. Third party rights

34.1 Except as expressly provided for in clause 34.2, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.

34.2 Any Affiliate of the Design Studio shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.

35. Dispute resolution

35.1 Any dispute arising between the parties out of or in connection with the Contract shall be dealt with in accordance with the provisions of this clause 35.

35.2 The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.

35.3 The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedure:

35.3.1 Within five Business Days of service of the notice, the contract managers of each of the parties shall meet to discuss the dispute and attempt to resolve it.

35.3.2 If the dispute has not been resolved within five Business Days of the first meeting of the contract managers, then the matter shall be referred to the chief executives (or persons of equivalent seniority) of each of the parties. The chief executives (or equivalent) shall meet within five Business Days to discuss the dispute and attempt to resolve it.

35.4 Either party may issue formal legal proceedings at any time whether or not the steps referred to in clause 35.3 have been completed. 

36. Governing law

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

37. Jurisdiction

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

The Schedule (Part A) – Commercial Terms

The following provisions shall apply to Prices and payments under this Agreement:

1 Prices and expenses

1.1 The Client shall pay the following Price and expenses as set out below:

1.1.1 an up front payment of 30% of the Price on Deliverables where the Price is over £500;

1.1.2 an up front payment of 100% of the Price on Deliverables where the Price is under £500;

1.1.3 all up front payments are non-refundable and required to secure the provision of the  Deliverables.

1.2 Any and all of the balance on the Price due after any up front payments have been paid shall be settled in one of three ways depending on the scope of works agreed in the Order Form, and the exact way of settlement shall be specified in the Order Form and may include one of the following:

(a) the remainder of the Price due before the Deliverables are supplied once the Deliverables are ready for delivery; or
(b) the remainder of the Price split across agreed Deliverable checkpoints as set out in the Order Form (for example, for the Graphic Design the Design Studio may take a payment after the design phase and another payment before the Deliverables are supplied); or
(c)t he remainder of the Fee split evenly to be paid monthly over 6 or 12 months via Direct Debit.

1.3 Unless otherwise agreed by the parties in the Order Form or elsewhere, expressly, in writing, until all the Fees, and all sums, payable under this Agreement are paid in full to the Design Studio by the Client, the Design Studio shall be under no obligation to supply the Client with the Deliverables. 

1.4 Where the Client and the Design Studio agree to implement a Change under the provisions of clause 19.5, the Client shall pay the following Fees as set out below:

1.4.1 Hourly/Daily rate: per hour  plus VAT up to a maximum of per day. These fees shall be payable within on calendar month of receipt of the Design Studio’s invoice; and

1.4.2 In addition, a fixed Fee as set out in the Change Control Note where the Change Control Note specifies such a Fee.

The Schedule (Part B) – Data Processing

Processing of the Protected Data by the Design Studio under the Contract shall be for the subject-matter, duration, nature and purposes and involve the types of Personal Data and categories of Data Subjects set out in this Part B of the schedule.

1. Subject-matter of processing:

The processing is needed in order to ensure that the Processor can effectively deliver the contract to provide the goods and services to the Client.

2. Duration of the processing:

For the duration of the contract the personal data will be held and, beyond that, it will only be held with the express permission of the data subject.

3. Nature and purpose of the processing:

The nature of the processing means any operation such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of data (whether or not by automated means). The purpose is to allow us to perform our contract as a design agency.

4. Type of Personal Data:

The nature of the processing means any operation such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of data (whether or not by automated means). The purpose is to allow us to perform our contract as a design agency.

5. Categories of Data Subjects:

The owners and employees of the company or organisation for whom we are performing the contract.

The Schedule (Part C) – Technical and organisational security measures

1. The Design Studio shall implement and maintain the following technical and organisational security measures to protect the Protected Data. 

1.1 In accordance with the Data Protection Laws, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of the Protected Data to be carried out under or in connection with the Contract, as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Protected Data transmitted, stored or otherwise processed, the Design Studio shall implement appropriate technical and organisational security measures appropriate to the risk, including as appropriate those matters mentioned in Articles 32(1)(a) to 32(1)(d) (inclusive) of the GDPR.

38. Printed Materials

Variations in quantity – Every endeavour will be made to deliver the correct quantity ordered. However some variation is inherent in the print process and it is understood and accepted as reasonable that minor variations are immaterial and acceptable up to 4% and that the Dexterous Designs shall have no liability in respect of such variations. For shortages greater than 4% and less than 25% the Dexterous Designs’s entire liability will be to award a Credit of x – 4% pro rata to the value of the order where x = the shortage e.g. a shortage of 15% will receive credit of 11% of the value of the order. The Customer’s sole remedy in respect of shortages above 25% (“Additional Shortages”) will be a re-print of the entire shortage quantity of the relevant work, to be undertaken by the Dexterous Designs within a reasonable period of time. The Customer shall not be entitled to a Credit in respect of an Additional Shortage.