In this document the following words shall have the following meanings:
1.1 "Agreement" means these Terms and Conditions together with the terms of any associated Project Proposal;
1.2 "Client" means the organisation or person who purchases goods and services from the Supplier;
1.3 "Intellectual Property Rights" means all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property wherever in the world enforceable;
1.4 "Project Proposal" means a statement of work, quotation or other similar document describing the goods and services to be provided by the Supplier;
1.5 "Supplier" means The Cube Concept Limited, 128 Connaught Road, Teddington, Middlesex, TW11 0QH.
2.1 These Terms and Conditions shall apply to all contracts for the supply of goods and services by the Supplier to the Client.
2.2 Before the commencement of the services the Supplier shall submit to the Client a Project Proposal which shall specify the goods and services to be supplied and the price payable. The Client shall notify the Supplier immediately if the Client does not agree with the contents of the Project Proposal. All Project Proposals shall be subject to these Terms and Conditions.
2.3 If the Client fulfils their obligations stipulated in the Project Proposal then the Supplier shall use all reasonable endeavours to complete the services within the estimated time frames specified within the Project Proposal.
3 PRICE AND PAYMENT
3.1 The price for the supply of goods and services are as set out in the Project Proposal.
3.2 Invoiced amounts shall be due and payable within 30 days of receipt of invoice. The Supplier shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of 1.5% per calendar month. In the event that the Client’s procedures require that an invoice be submitted against a purchase order to payment, the Client shall be responsible for issuing such purchase order before the goods and services are supplied.
3.3 The Client shall notify the Supplier of any queries on invoices within 7 days of the date of the invoice.
4 SPECIFICATION OF THE GOODS
All goods shall be required only to conform to the specification listed in the Project Proposal. For the avoidance of doubt, no description, specification or illustration contained in any product pamphlet or other sales or marketing literature of the Supplier and no representation written or oral, correspondence or statement shall form part of the contract.
5.1 The date of delivery specified by the Supplier is an estimate only. Time for delivery shall not be of the essence of the contract and the Supplier shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the goods.
5.2 All risk in the goods shall pass to the Client upon delivery.
Title in the Goods shall not pass to the Client until the Supplier has been paid in full for the Goods.
7 CLIENT`S OBLIGATIONS
7.1 To enable the Supplier to perform its obligations under this Agreement the Customer shall:
7.1.1 co-operate with the Supplier;
7.1.2 provide the Supplier with any information reasonably required by the Supplier;
7.1.3 obtain all necessary permissions, consents and approvals which may be required before the commencement of the services; and
7.1.4 comply with such other requirements as may be set out in the Project Proposal or otherwise agreed between the parties.
7.2 The Client shall be liable to compensate the Supplier for any expenses incurred by the Supplier as a result of the Customer’s failure to comply with Clause 7.1.
7.3 Without prejudice to any other rights to which the Supplier may be entitled, in the event that the Client unlawfully terminates or cancels the goods and services agreed to in the Specification Document, the Client shall be required to pay to the Supplier as agreed damages and not as a penalty the full amount of any third party costs to which the Supplier has committed and in respect of cancellations on less than five working days’ written notice the full amount of the goods and services contracted for as set out in the Project Proposal, and the Client agrees this is a genuine pre-estimate of the Supplier’s losses in such a case. For the avoidance of doubt, the Client’s failure to comply with any obligations under Clause 7.1 shall be deemed to be a cancellation of the goods and services and subject to the payment of the damages set out in this Clause.
7.4 In the event that the Client or any third party, not being a sub-contractor of the Supplier, shall omit or commit anything which prevents or delays the Supplier from undertaking or complying with any of its obligations under this Agreement, then the Supplier shall notify the Client as soon as possible and:
7.4.1 the Supplier shall have no liability in respect of any delay to the completion of any project;
7.4.2 if applicable, the timetable for the project will be modified accordingly;
7.4.3 the Supplier shall notify the Client at the same time if it intends to make any claim for additional costs.
7.5 The Client is solely responsible to test the designs and any prototypes Supplier provides.
7.6 The Client is solely responsible to ensure that any resulting products are tested, manufactured, packaged, labeled (including adequate warnings), sold, and used in a safe and careful manner and in compliance with all applicable laws, regulations, and appropriate industry standards.
7.7 Client assumes all responsibility for any information and/or specifications it provides to the Supplier and agrees that, unless specifically stated in this Agreement, the Supplier may rely on such information and/or specifications without independent verification.
8 ALTERATIONS TO THE PROJECT PROPOSAL
8.1 The parties may at any time mutually agree upon and execute new Project Proposals. Any alterations in the scope of goods and/or services to be provided under this Agreement shall be set out in the Project Proposal, which shall reflect the changed goods and/or services and price and any other terms agreed between the parties.
8.2 The Client may at any time request alterations to the Project Proposal by notice in writing to the Supplier. On receipt of the request for alterations the Supplier shall, within 5 working days or such other period as may be agreed between the parties, advise the Client by notice in writing of the effect of such alterations, if any, on the price and any other terms already agreed between the parties.
8.3 Where the Supplier gives written notice to the Client agreeing to perform any alterations on terms different to those already agreed between the parties, the Client shall, within 5 working days of receipt of such notice or such other period as may be agreed between the parties, advise the Supplier by notice in writing whether or not it wishes the alterations to proceed.
8.4 Where the Supplier gives written notice to the Client agreeing to perform alterations on terms different to those already agreed between the parties, and the Client confirms in writing that it wishes the alterations to proceed on those terms, the Project Proposal shall be amended to reflect such alterations and thereafter the Supplier shall perform this Agreement upon the basis of such amended terms.
9.1 The Supplier warrants that the services performed under this Agreement shall be performed using reasonable skill and care, and of a quality conforming to generally accepted industry standards and practices.
9.2 Except as expressly stated in this Agreement, all warranties whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the goods and services to be provided by the Supplier.
The Client shall indemnify the Supplier against all claims, costs and expenses which the Supplier may incur and which arise, directly or indirectly, from the Client’s breach of any of its obligations under this Agreement, including any claims brought against the Supplier alleging that any goods and/or services provided by the Supplier in accordance with the Project Proposal infringes a patent, copyright or trade secret or other similar right of a third party.
11 LIMITATION OF LIABILITY
11.1 Except in respect of death or personal injury due to negligence for which no limit applies, the entire liability of the Supplier to the Client in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the price paid by the Client to which the claim relates.
11.2 In no event shall the Supplier be liable to the Client for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or the Supplier had been made aware of the possibility of the Client incurring such a loss.
11.3 . The Supplier is obliged to produce original material, however it is quite conceivable that original material may in some instances infringe third party rights. Under this agreement the Supplier is obliged not to knowingly infringe third party rights.
11.4 Nothing in these Terms and Conditions shall exclude or limit the Supplier’s liability for death or personal injury resulting from the Supplier’s negligence or that of its employees, agents or sub-contractors.
Either party may terminate this Agreement forthwith by notice in writing to the other if:
12.1 the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice from the other party to do so;
12.2 the other party commits a material breach of this Agreement which cannot be remedied under any circumstances;
12.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
12.4 the other party ceases to carry on its business or substantially the whole of its business; or
12.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
13 INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall not pass to the Client until the Supplier has been paid in full for the Goods or Services.
14 FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, acts of terrorism, fire, the act or omission of government, or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.
15 INDEPENDENT CONTRACTORS
The Supplier and the Client are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. The Supplier may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Client and such engagement shall not relieve the Supplier of its obligations under this Agreement or any applicable Project Proposal.
The Client shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Supplier.
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
Any notice to be given by either party to the other may be served by email, personal service or by post to the address of the other party given in the Project Proposal or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
The Supplier reserves the right to use the work created under this agreement, including designs, prototypes and finished products, for advertising, sales, marketing or publicity purposes.
At the Suppliers request the Client agrees to provide examples of any final products incorporating design work created under the terms of this agreement to the Supplier at a reasonable cost.
21 ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both parties.
22 NO THIRD PARTIES
Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.
23 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.
We would be grateful if you could confirm your agreement to the terms set out in this letter by signing, dating and returning this document to us. You hereby represent and warrant to us that the person who signs and returns this document on your behalf is authorised to do so, and that his/ her signature is legally binding.