DESIGN AND MARKETING IN WILTON, SALISBURY

Terms and Conditions

Jasmine Cottage Marketing (JCM) Terms and conditions for the supply of services

1. Interpretation
The following definitions and rules of interpretation apply to this Contract.
1.1Definitions:
Business Day: a day when banks in London are open for business.
Commencement Date: has the meaning set out in clause 12.2
Conditions: these terms and conditions as amended from time to time in accordance with clause 3.
Contract: the contract between JCM and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who is commissioning the Services from JCM.
Customer Default: has the meaning set out in clause 4.2.
Data Protection Legislation: all applicable data protection laws including the General Data Protection Regulation ((EU) 2016/679) and any applicable national implementing laws.
Domestic UK Law: the Data Protection Legislation and any other law that applies in the UK.
Force Majeure Event: an event beyond the reasonable control of either party.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
JCM: Jasmine Cottage Marketing
Services: the services supplied by JCM to the Customer as set out in the Specification.
Specification: any document, howsoever described, including but not limited to, a quote or an order, containing the description for the Services.
Supplier Materials: any material supplied by JCM or through JCM to the Customer.

2. Basis of contract
Upon request, JCM shall supply to the Customer a Specification. The Specification constitutes an offer by JCM to supply Services in accordance with these Conditions.
The Specification shall only be deemed to be accepted on the earlier of:
(a) JCM receiving a written acceptance (including by email) of the Specification from the Customer; or
(b) any act by JCM consistent with fulfilling the Specification, at which point and on which date the Contract shall come into existence, (Commencement Date).
The Contract and the Specification constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of JCM which is not set out in the Contract or the Specification.
These Conditions apply:
to the Contract with the Customer for the supply of Services by JCM to the Customer unless agreed otherwise in writing with the Customer; and
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.
Any Specification given by JCM is only valid for a period of thirty (30) Business Days from its date of issue.
Acceptance by the Customer of performance of the Services shall be deemed to constitute unqualified acceptance of these Conditions.

3. Supply of Services
JCM shall provide the Services to the Customer in accordance with the Specification in all material respects.
Any amendment to the agreed Specification shall not be valid unless it is made in accordance with clause 3.3.
Where necessary, JCM and the Customer shall agree to meet at regular intervals to discuss matters relating to the Services. If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing. JCM shall, within a reasonable time, provide a written estimate to the Customer of:
the likely time required to implement the change;
any necessary variations to JCM’s charges arising from the change; and
any other impact of the change on this Contract.
If the Customer wishes JCM to proceed with the change, JCM has no obligation to do so unless and until the parties have agreed the necessary variations to its charges and the Services to take account of the change and this Contract has been varied in accordance with clause 3.3.
JCM shall use reasonable endeavours to meet any performance dates for the Services specified in the Service Specification, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
JCM warrants to the Customer that the Services will be provided using reasonable care and skill.

4. Customer’s obligations
The Customer shall:
ensure that the terms of the Specification are complete and accurate;
co-operate with JCM in all matters relating to the Services;
provide JCM with such information as JCM may reasonably require;
provide, in a timely manner, such information as JCM may reasonably require, and ensure that it is accurate in all material respects;
obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
If JCM’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
JCM shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from JCM’s failure or delay to perform any of its obligations as set out in this clause 2.2; and
the Customer shall reimburse JCM on written demand for any costs or losses sustained or incurred by JCM arising directly or indirectly from the Customer Default.

5. Charges and payment
Where Services are provided on a time and materials basis:
The charges shall be calculated in accordance with the agreed daily or hourly fee rates, as set out in the Specification: and
JCM shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom JCM engages in connection with the Services including, but not limited to, travelling expenses, and any associated expenses, and for the cost of any materials.
5.2 Where Services are provided for a fixed price, the total price for the Services shall be the amount set out in the Specification as amended from time to time in accordance with clause 3.3. The Customer shall pay the total price to JCM in accordance with the Specification.
5.3 JCM shall invoice the Customer in accordance with the Specification.
5.4 The Customer shall pay each invoice submitted by JCM within (30) days of the date of the invoice and in full and in cleared funds to a bank account nominated in writing by JCM, and time for payment shall be of the essence of the Contract.
5.5 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay JCM on the due date, JCM may:
charge interest on such sum from the due date for payment at the annual rate of 4% above the base rate from time to time of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; and
(b) suspend all Services until payment has been made in full.
5.6 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against JCM in order to justify withholding payment of any such amount in whole or in part. JCM may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by JCM to the Customer.
5.7 All sums payable to JCM under this Contract shall become due immediately on its termination, despite any other provision. This clause 5.7 is without prejudice to any right to claim for interest under the law, or any such right under this Contract.

6. Intellectual property rights
6.1 All Intellectual Property Rights in and arising out of or in connection with the Services (including Supplier Materials) shall be owned by JCM. Subject to clause 6.2, JCM licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Services. If this Contract is terminated, this licence will automatically terminate.
The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on JCM obtaining a written licence from the relevant licensor on such terms as will entitle JCM to license such rights to the Customer.
The Customer grants to JCM a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to JCM for the term of the Contract for the purpose of providing the Services to the Customer.

7. Data protection
The parties agree to comply with all Domestic UK Law.

8. Licences and consents
The Customer shall be solely responsible for ensuring that it has the necessary licences, consents, permits to procure the Services from JCM.
The Customer shall be liable for any additional expenses or charges incurred by JCM as a result of such failure by the Customer.
Confidentiality
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, technical or commercial know-how, specifications, inventions, processes or initiatives of the other party except as permitted by this clause

9. Confidentiality
Each party may disclose the other party’s confidential information 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 this Contract.
Except as set out in this clause 9, neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

10. Indemnity and Liability
10.1 The Customer shall keep JCM indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by JCM as a result of or in connection with any claim made against JCM by a third party for death, personal injury or damage to property arising out of, or in connection with the Services to the extent that such liability is wholly or partly attributable to the negligent acts or omissions of the Customer, its employees, agents or subcontractors.
10.2 This clause 10 shall survive termination of the Contract.
11. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
Nothing in these Conditions shall limit or exclude JCM’s liability for: death or personal injury caused by its negligence; fraud or fraudulent misrepresentation; breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982, and section 12 of the Sale of Goods Act 1979 (title and quiet possession).
Notwithstanding anything contrary in these Conditions:
(a) JCM shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for: any loss of profit; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of use or corruption of software, data or information; loss or damage to goodwill and any direct, indirect or inconsequential loss
arising under or in connection with the Contract.
JCM’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 monies received by JCM under this Contract.
Except as set out in these Conditions, all warranties, conditions and other terms expressed or implied by statute, common law or otherwise, including but not limited to 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.
This clause 11 shall survive termination of the Contract.
12. Termination
Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
the other party commits a breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within fourteen (14) days after receipt of notice in writing of the breach;
the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantial part of its business.
Consequences of termination
On termination of the Contract:
the Customer shall immediately pay to JCM all of JCM’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, JCM shall submit an invoice, which shall be payable by the Customer immediately on receipt; and
the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. 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.
Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
General
Force Majeure: Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from a Force Majeure Event. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for two (2) months, the party not affected may terminate this agreement by giving thirty (30) days’ written notice to the affected party.
Notices: Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by email to the address communicated between the parties at the time of entering into the Contract.
Waiver: A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
Severance: 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.
No partnership or agency: Nothing in this Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties.
Entire agreement: The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Third parties: The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of the Contract.
Conflict: If there is an inconsistency between any of the provisions in this Contract and the Services Specification or any terms and conditions issued by the Customer, the Conditions in this Contract shall prevail.
Dispute Resolution: All disputes arising out of or in connection with this Contract shall to the extent possible be settled amicably by negotiation between the parties within thirty (30) days from the date of written notice by either party of the existence of such a dispute. If the dispute is not resolved in accordance with clause 0 the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure.
Governing law and jurisdiction: This 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.