The attention of the Customer is particularly drawn to the provisions of clause 11.
1.1 Definitions. In these Conditions, the following definitions apply:Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 6.Commencement Date: has the meaning set out in clause 2.
2.Conditions: these terms and conditions as amended from time to time in accordance with clause 16.Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases the Services from the Supplier.
Customer Materials: all documents, materials, equipment and tools, designs, drawings, artwork, specifications and data supplied by the Customer to the Supplier.
Deliverables: the deliverables set out in the Specification produced by the Supplier for the Customer.Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.Interim Deliverables: any documents, materials, designs, drawings, artwork and/or data produced by the Supplier for the Customer and which are delivered to the Customer for approval.
Non-Chargeable Amendment Allowance: an amount of time equal to 10% of any Project Stage Time Estimate. Order: the Customer’s order for the supply of the Services set out in a Specification.Project: the entirety of the work agreed with the Customer for this project, as set out in the Specification. Project Price: the total Charges for the Services as set out in the Specification when working on a fixed price basis.Project Stage: an interval by which specified part of the Services are to be completed, as set out in a Specification.Project Stage Time Estimate: the Supplier’s estimate of the time it will take to complete a Project Stage, as set out in the Specification.Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Specification.Specification: the description or specification of the Services provided in writing by the Supplier to the Customer. Supplier: GOKU.
Supplier IPRs: all Intellectual Property Rights subsisting in the Deliverables excluding any Customer Materials incorporated in them.Supplier Materials: has the meaning set out in clause 5.1(f).1.2 Construction. In these Conditions, the following rules apply:(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);(b) a reference to a party includes its personal representatives, successors or permitted assigns;(c) a reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and(e) a reference to writing or written includes fax and email. 2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Services as set out in the Specification in accordance with these Conditions.2.2 The Order shall only be deemed to be accepted at the earlier of:
(a) the Supplier issuing written acceptance of an Order; or
(b) after receipt of an Order from the Customer, the Supplier commencing work in preparation for providing any of the Services at which point and on which date the Contract shall come into existence (“Commencement Date”).2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the catalogues or brochures of the Supplier, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.2.6 Any prices given in the Specification are only valid for a period of 20 Business Days from its date of issue and shall not of itself constitute an offer.2.7 Any prior specifications, estimates and/or other quotations provided by the Supplier shall not constitute an offer. 3. Supply of services
3.1 The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.3.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event. 4. Additional Services
4.1 If at any time during the term of the Contract the Customer requests and/or requires services which have not been agreed in the Specification, then the provision of any such additional services shall be subject to a separate Specification pursuant to these Conditions. 5. The Customer
5.1 The Customer shall provide the Supplier with as much information as the Supplier reasonably requests in order to prepare a further Specification for the additional services. 6. Obligations of the Customer
6.1 The Customer shall:(a) ensure that the terms of the Order and any information it provides to the Supplier to create the Specification are complete and accurate;(b) co-operate with the Supplier in all matters relating to the Services;(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the premises of the Customer, office accommodation and other facilities as reasonably required by the Supplier;(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;(e) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start; and(f) keep and maintain all materials, equipment, documents and other property of the Supplier (“Supplier Materials”) at the premises of the Customer in safe custody at its own risk and not dispose of or use the Supplier Materials other than in accordance with the written instructions or authorisation of the Supplier;(g) comply with any additional obligations as set out in the Specification.
6.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the performance of the Supplier of any of its obligations;(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the failure or delay of the Supplier to perform any of its obligations as set out in this clause 5.2; and(c) the Customer shall reimburse the Supplier on written demand for any costs or losses, including the Charges and any additional amounts, sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
7. Charges and payment
7.1 In consideration of the Supplier providing the Services, the Customer shall pay the Charges.7.2 Where the Charges are calculated on a time and materials basis:(a) the Supplier’s standard hourly rates for each individual person shall be set out in the Specification; and(b) the Supplier shall invoice the Customer at the end of each month for Services performed during that month, provided always that the Supplier may, at its absolute discretion, invoice the Customer for payments on account.7.3 Where the Charges are calculated on a fixed price basis:(a) the amount payable shall be set out in the Specification and the total amount of those Charges shall be referred to as the Project Price in these terms and conditions;(b) the Supplier may invoice the Customer for payments on account of the Project Price in advance of the Supplier commencing each Project Stage and, for the avoidance of doubt, payment by the Customer of such an invoice shall not be in full and final satisfaction of the Project Price; and(c) at the Commencement Date the Customer is liable to the Supplier for the Project Price in full, without any deduction or set-off.7.4 The Supplier shall be entitled to charge the Customer for:(a) any expenses reasonably incurred and agreed in advance with the Customer, including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses; and(b) the cost to the Supplier of any materials and/or services procured by the Supplier from third parties and required by the Supplier for the performance of the Services, as such items and their cost are set out in the Specification and/or approved by the Customer in advance from time to time.7.5 The Customer shall pay each invoice submitted by the Supplier:(a) within 30 days of the date of the invoice; and(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be the essence of the Contract.7.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT).
Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.7.7 If the Customer does not provide any payment on account as requested by the Supplier, the Supplier may refuse to provide the Services until such payment on account is received in full.7.8 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier’s remedies under clause 12, the Customer shall pay interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.7.9 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.7.10 The Supplier reserves the right to increase its standard hourly fee rates, provided that such charges cannot be increased more than once in any 12-month period. The Supplier will give the Customer written notice of any such increase at least 28 days before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify the Supplier in writing within 2 weeks of the date of the Supplier’s notice and the Supplier shall have the right without limiting its other rights or remedies to terminate the Contract by giving 1 weeks’ written notice to the Customer.
8. Customer Approval of Interim Deliverables
8.1 Upon the completion of each Project Stage and/or from time to time as required, the Customer may be provided with Interim Deliverables.8.2 If the Customer (acting reasonably) believes that Interim Deliverables do not conform to the Specification in any material respect, then the Customer shall notify the Supplier in writing within 10 days of receiving and/or bring presented with the Interim Deliverables and the Customer shall provide the Supplier with as much information as the Supplier reasonably requests as to why it considers the Interim Deliverables do not conform to the Specification.8.3 If the Supplier has not received a notice from the Customer pursuant to clause 7.2 then the Interim Deliverables shall be deemed to have been accepted by the Customer and to conform with the Specification in every respect.8.4 Subject to clause 7.5, if the Customer requests any amendments to the Interim Deliverables then the Charges for these amendments will be calculated on a time and materials basis on the Supplier’s standard hourly rates set out in the Specification.8.5 Notwithstanding clause 7.4, in relation to each Project Stage the Customer shall not incur any Charges for amendments to the Interim Deliverables carried out during the Non-Chargeable Amendment Allowance.
9. Delivery of the Deliverables
9.1 Following Customer approval of the Interim Deliverables provided and/or presented to the Customer during the final Project Stage:(a) The Customer shall pay to the Supplier any and all outstanding unpaid invoices in respect of Services supplied; and(b) The Supplier shall, subject to payment of all outstanding invoices, provide the Deliverables to the Customer. 10. Intellectual Property Rights
10.1 The Supplier and its licensors shall retain ownership of all Supplier’s IPRs. The Customer and its licensors shall retain all Intellectual Property Rights in the Customer Materials.10.2 Subject to payment of all Charges in full, the Supplier grants the Customer a fully paid-up, non-exclusive, worldwide, royalty-free, non-transferable licence to copy, transmit to the public and/or otherwise deal with the Supplier’s IPRs in the Customer’s business.10.3 The Customer may not sub-license or otherwise transfer the rights granted in clause 9.2 without the written permission of the Supplier.10.4 If the Supplier terminates the Contract under clauses 12.2 or 12.3 and/or the Customer is in breach of clauses 10(a) and/or10(b), the licence and any sub-licences will automatically terminate.10.5 The Customer grants the Supplier a fully paid-up, non-exclusive, worldwide, royalty-free, non-transferable licence to copy and modify the Customer Materials for the purpose of providing the Services to the Customer in accordance with this Contract and for the Supplier’s marketing and promotion as set out in clause 22.214.171.124 The Customer shall keep the Supplier indemnified in full against all legal costs incurred and/or any sums awarded by a court as a result of or in connection with any claim brought against the Supplier for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Customer Materials by the Supplier.10.7 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the use by the Customer of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.10.8 The Supplier may make reasonable use of the Interim Deliverables and/or the Deliverables (or any parts thereof) for the purpose of marketing and promoting the Supplier and its services.
11.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.2.11.2 Each party may disclose the other party’s confidential information:(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 10; and(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.11.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.11.4 The above provision of this clause 10 shall survive termination of the Contract.
12. Limitation of liability
12.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or(b) fraud or fraudulent misrepresentation; or(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).12.2 Subject to clause 11.1:(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any direct or indirect loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the maximum of either:(c) £1,000.00; or(d) 1.5 times the total Charges paid under the Contract.12.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.12.4 This clause 11 shall survive termination of the Contract.
13.1 Without limiting its other rights or remedies, either party may terminate the Contract by giving the other party 1 month written notice.13.2 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;(d) 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 that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;(e) the other party (being an individual) is the subject of a bankruptcy petition order;(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;(g) an application is made to Court, or an Order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);(h) the holder of a qualifying floating charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2(b) to clause 12.2(i) (inclusive);(k) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;(l) the other party’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or(m) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
13.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 14 days after being notified in writing to do so.13.4 Without limiting its other rights or remedies, the Supplier may suspend provision of the Services under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 12.2(b) to clause 12.2(m), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment. 14. Consequences of termination
On termination of the Contract for any reason:(a) the Customer shall immediately pay to the Supplier all of the outstanding unpaid invoices and interest of the Supplier and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice or note of outstanding charges, which shall be payable by the Customer immediately on receipt;(b) the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the premises of the Customer and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;(c) Any licence(s) granted under clause 9.2 will be revoked immediately.(d) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and(e) clauses which expressly or by implication survive termination shall continue in full force and effect.
15. Force majeure
15.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.15.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.(a) If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 6 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
16. Assignment and other dealings
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.(b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives). 18. Variation
A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.(b) If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 19(a); if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
21. Inadequacy of Damages
Without prejudice to any other rights or remedies that the Supplier may have, the Customer acknowledges and agrees that damages alone would not be an adequate remedy for any breach under clauses 9 and 10 of this agreement. Accordingly, the Supplier shall be entitled to the remedies of injunctions, specific performance or other equitable relief for any threatened or actual breach of this agreement by the Customer. 22. Third Parties
22.1 A person who is not a party to the Contract shall not have any rights to enforce its terms.
23. Governing Law
The Contract, 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. 24. No Partnership or Agency
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.