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Adglow Ltd: Terms & Conditions

1. INTERPRETATION

The following definitions and rules of interpretation apply in these Conditions.

1.1. Definitions:

Adglow: Adglow Ltd registered in England and Wales with company number 579219.

Adglow Materials: has the meaning given in clause 4.1.8.

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.

Commencement Date: has the meaning given in clause 2.2.

Conditions: these terms and conditions as amended from time to time in accordance with clause 21.5.

Contract: the contract between Adglow and the Customer for the supply of Products and/or Services in accordance with these Conditions.

Customer: the person or firm who purchases the Products and/or Services from Adglow.

Customer Equipment: materials produced by the Customer or a third party that the Customer requires Adglow to install as part of the Installation Services.

Customer IPRs: the Trade Marks, Materials and all Intellectual Property Rights of which the Customer is the owner or licensee and which are disclosed, licensed or provided to Adglow pursuant to the Contract.

Deliverables: all materials, documents and designs produced or provided by Adglow as part of the Services, or incorporated by Adglow within the Services, other than the Customer IPRs, but including any designs associated with the Manufactured Goods, Design Services or Installation Services.

Delivery: completion of delivery of an Order in accordance with clause 8.3 or clause 8.6.1.

Delivery Location: has the meaning given in clause 8.2.

Design Services: the services provided by Adglow whereby Adglow designs the Products.

Force Majeure Event: means any circumstance not within a party’s reasonable control including, without limitation:

a) acts of God, flood, drought, earthquake or other natural disaster;
b) epidemic or pandemic;
c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
d) nuclear, chemical or biological contamination or sonic boom;
e) any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition;
f) collapse of buildings, fire, explosion or accident;
g) non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and
h) interruption or failure of utility service.

Goods: the goods (or any part of them) excluding the Manufactured Goods and the Customer Equipment set out in the Order.

Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and Adglow.

Improvement: any improvement, development, enhancement, modification or derivative of the Manufactured Goods, or its design or manufacturing process, which would make the Manufactured Goods cheaper, more effective, more useful or more valuable, or would in any other way render the Manufactured Goods more commercially competitive.

Installation Services: the services provided by Adglow to install the Products and/or the Customer Equipment.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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.

Order: the Customer’s order for the supply of Products and/or Services, as set out in the Customer’s written acceptance of Adglow’s quotation, the Customer’s purchase order form or overleaf, as the case may be.

Manufactured Goods: the goods (or any part of them) manufactured by Adglow as set out in the Order.

Manufactured Goods Specification: any specification for the Manufactured Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and Adglow.

Materials: all forms, manuals, records, artwork and other documents and materials provided by the Customer to Adglow in connection with this Agreement.

Preparatory Costs: any costs incurred by us in preparing for the provision of the Services and or Products as at the date of, or as a consequence of, a cancellation of the Services including the costs of sub-contractors and materials.

Products: the Goods and/or the Manufactured Goods as appropriate.

Services: the services, including the Design Services, Installation Services and Deliverables, supplied by Adglow to the Customer as set out in the Service Specification.

Service Specification: the description or specification for the Services provided in writing by Adglow to the Customer.

Trade Marks: the registered trade marks of the Customer set out in the Order.

UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

2. BASIS OF CONTRACT

2.1. The Order constitutes an offer by the Customer to purchase Products or Services or Products and Services in accordance with these Conditions.

2.2. The Order shall only be deemed to be accepted on the earlier of Adglow:

2.2.1. issuing a written acceptance of the Order; and
2.2.2. beginning to provide the Services, at which point and on which date the Contract shall come into existence (Commencement Date).

2.3. Any samples, drawings, descriptive matter or advertising issued by Adglow and any descriptions of the Products or illustrations or descriptions of the Services contained on Adglow’s website are issued or published for the sole purpose of giving an approximate idea of the Services and/or Products described in them. They shall not form part of the Contract nor have any contractual force.

2.4. 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 law, trade custom, practice or course of dealing.

2.5. Any quotation given by Adglow shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.

2.6. All of these Conditions shall apply to the supply of both Products and Services except where application to one or the other is specified.

2.7. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

3. SUPPLY OF SERVICES

3.1. Adglow shall supply the Services to the Customer in accordance with the Service Specification in all material respects.

3.2. Adglow shall use all reasonable endeavours to meet any performance dates for the Services specified in correspondence between the parties, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

3.3. Adglow reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Adglow shall notify the Customer in any such event.

3.4. Adglow warrants to the Customer that the Services will be provided using reasonable care and skill.

4. CUSTOMER’S OBLIGATIONS

4.1. The Customer shall:

4.1.1. ensure that the terms of the Order and any information it provides in the Service Specification and the Goods Specification are complete and accurate;
4.1.2. co-operate with Adglow in all matters relating to the Services;
4.1.3. provide Adglow, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Adglow to provide the Services;
4.1.4. provide Adglow with such information and materials as Adglow may reasonably require in order to supply the Services (including the logos, colours and electronic video content required for Products and/or Design Services), and ensure that such information is complete and accurate in all material respects;
4.1.5. prepare the Customer’s premises for the supply of the Services;
4.1.6. 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;
4.1.7. comply with all applicable laws, including health and safety laws;
4.1.8. keep all materials, equipment, documents and other property of Adglow (Adglow Materials) at the Customer’s premises in safe custody at its own risk, maintain Adglow Materials in good condition until returned to Adglow, and not dispose of or use Adglow Materials other than in accordance with Adglow’s written instructions or authorisation; and
4.1.9. as soon as practicable after entering into the Contract, disclose to Adglow the Materials and Customer Equipment required to complete the Services and/or to produce the Manufactured Goods;
4.1.10. where Adglow is providing Installation Services:

4.1.10.1. ensure that the Customer Equipment is free from defects and fit for purpose;
4.1.10.2. inform Adglow of any storage requirements applicable to the Customer Equipment; and
4.1.10.3. inform Adglow of any insurance requirements relating the Customer Equipment.

4.1.11. comply with any additional obligations as set out in the Service Specification;
4.1.12. comply with any additional obligations as set out in the Manufactured Goods Specification and the Goods Specification;
4.1.13. not in any way prevent Adglow from taking any photographs, images and/or video footage of installed Products in the public domain, nor shall it prevent Adglow from using any such photographs, images or video footage for its own marketing purposes, or for such other purposes of Adglow.

4.2. If Adglow’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):

4.2.1. without limiting or affecting any other right or remedy available to it, Adglow shall 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 in each case to the extent the Customer Default prevents or delays Adglow’s performance of any of its obligations;
4.2.2. Adglow shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Adglow’s failure or delay to perform any of its obligations as set out in this clause 4.2.

MANUFACTURED GOODS

5. SAMPLES

5.1. Adglow shall as soon as practicable after accepting the Order, submit to the Customer for approval pre-production samples of the Manufactured Goods.

5.2. Adglow shall not commence manufacture of the Manufactured Goods until the Customer has communicated its approval of the samples to Adglow in writing (such approval not to be unreasonably withheld or delayed).

5.3. The Customer’s approval of the samples constitutes irrevocable confirmation that:

5.3.1. the Manufactured Goods manufactured in conformity with the samples (or differing only within normal industrial limits) will comply with the Manufactured Goods Specification; and
5.3.2. the Manufactured Goods will meet the industry standards and requirements of quality specified in clause 6.2, except for defects which are not capable of being revealed on reasonable inspection by the Customer.

6. MANUFACTURE, QUALITY AND PACKING

6.1. Adglow agrees that it will maintain sufficient manufacturing capacity, stocks of raw materials and packaging, and stocks of Products to enable it to produce the Manufactured Goods as notified to Adglow in the Order.

6.2. Adglow warrants and undertakes that the Manufactured Goods supplied to the Customer by Adglow under the Contract shall:

6.2.1. conform to the Manufactured Goods Specification;
6.2.2. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended);
6.2.3. be free from defects in design, material and workmanship and remain so for 12 months after Delivery (Warranty Period); and
6.2.4. comply with all applicable statutory and regulatory requirements.

6.3. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the agreement.

6.4. Adglow shall ensure that the Manufactured Goods are properly packed and secured in a manner to enable them to reach their destination in good condition.

6.5. Adglow shall obtain and maintain in force for the Term all licences, permissions, authorisations, consents and permits needed to manufacture and supply the Manufactured Goods in accordance with the terms of the Contract.

6.6. Adglow shall comply with all applicable laws, enactments, orders, regulations and other instruments relating to the manufacture, packing, packaging, marking, storage, handling and delivery of the Manufactured Goods.

7. GOODS

7.1. The Goods are described in the Goods Specification.

7.2. Adglow reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and Adglow shall notify the Customer in any such event.

PRODUCTS

8. DELIVERY OF PRODUCTS

8.1. Adglow shall ensure that:

8.1.1. each delivery of the Products is accompanied by a delivery note which shows the date of the Order, the type and quantity of the Products (including the code number of the Products, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Products remaining to be delivered; and
8.1.2. it states clearly on the delivery note any requirement for the Customer to return any packaging material to Adglow. The Customer shall make any such packaging materials available for collection at such times as Adglow shall reasonably request. Returns of packaging materials shall be at Adglow’s expense.

8.2. Adglow shall deliver the Products to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Adglow notifies the Customer that the Products are ready.

8.3. Delivery of the Products shall be completed on the completion of unloading of the Products at the Delivery Location.

8.4. Any dates quoted for delivery of the Products are approximate only, and the time of delivery is not of the essence. Adglow shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the Customer’s failure to provide Adglow with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.

8.5. If Adglow fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Products. Adglow shall have no liability for any failure to deliver the Products to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Adglow with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.

8.6. If the Customer fails to take delivery of the Products within three Business Days of Adglow notifying the Customer that the Products are ready, then except where such failure or delay is caused by a Force Majeure Event or by Adglow’s failure to comply with its obligations under the Contract in respect of the Products:

8.6.1. delivery of the Products shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which Adglow notified the Customer that the Products were ready; and
8.6.2. Adglow shall store the Products until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

8.7. If ten Business Days after the day on which Adglow notified the Customer that the Products were ready for delivery the Customer has not taken actual delivery of them, Adglow may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Products or charge the Customer for any shortfall below the price of the Products.

8.8. If Adglow delivers up to and including 5% more or less than the quantity of Products ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Products was delivered, Adglow shall make a pro rata adjustment to the invoice for the Products.

8.9. Adglow may deliver the Products by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

9. QUALITY OF GOODS

9.1. Adglow warrants that on delivery, and for a period of 12 months from the date of Delivery (Goods Warranty Period), the Goods shall:

9.1.1. conform in all material respects with the Goods Specification;
9.1.2. be free from material defects in design, material and workmanship; and
9.1.3. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).

9.2. Subject to clause 9.3, if:

9.2.1. the Customer gives notice in writing to Adglow during the Goods Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 9.1;
9.2.2. the Customer gives notice in writing to Adglow during the Warranty Period within a reasonable time of discovery that some or all of the Manufactured Goods do not comply with the warranty set out in clause 6.2;
9.2.3. Adglow is given a reasonable opportunity of examining such Products; and
9.2.4. the Customer (if asked to do so by Adglow) returns such Products to Adglow’s place of business at the Customer’s cost,
Adglow shall, at its option, repair or replace the defective Products, or refund the price of the defective Products in full.

9.3. Adglow shall not be liable for the Products’ failure to comply with the warranty set out in clause 9.1 or clause 6.2 (respectively) if:

9.3.1. the Customer makes any further use of such Products after giving a notice in accordance with clause 9.2;
9.3.2. the defect arises because the Customer failed to follow Adglow’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products or (if there are none) good trade practice regarding the same;
9.3.3. the defect arises as a result of Adglow following any drawing, design, Manufactured Goods Specification or Goods Specification supplied by the Customer;
9.3.4. the Customer alters or repairs such Products without the written consent of Adglow;
9.3.5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
9.3.6. the Manufactured Goods differ from the Manufactured Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards; or
9.3.7. the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

9.4. Except as provided in this clause 9, Adglow shall have no liability to the Customer in respect of the:

9.4.1. Goods’ failure to comply with the warranty set out in clause 9.1; or
9.4.2. Manufactured Goods’ failure to comply with the warranty set out in clause 6.2.

9.5. These Conditions shall apply to any repaired or replacement Products supplied by Adglow.

10. TITLE AND RISK

10.1. The risk in the Products shall pass to the Customer on completion of delivery.

10.2. Title to the Goods and/or Products shall not pass to the Customer until the earlier of:

10.2.1. Adglow receives payment in full (in cash or cleared funds) for the Goods and/or Products and any other goods that Adglow has supplied to the Customer in respect of which payment has become due, in which case title to the Goods and/or Products shall pass at the time of payment of all such sums; and
10.2.2. the Customer resells the Products, in which case the title to the Products pass to the Customer at the time specified in clause 10.4.

10.3. Until title to the Products has passed to the Customer, the Customer shall:

10.3.1. store the Products separately from all other goods held by the Customer so that they remain readily identifiable as Adglow’s property;
10.3.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
10.3.3. maintain the Products in satisfactory condition and keep them insured against all risks for their full price on Adglow’s behalf from the date of delivery;
10.3.4. notify Adglow immediately if it becomes subject to any of the events listed in clause 18.1.2 to clause 18.1.4; and
10.3.5. give Adglow such information as Adglow may reasonably require from time to time relating to:
10.3.5.1. the Products; and
10.3.5.2. the ongoing financial position of the Customer.

10.4. Subject to Clause 10.5, the Customer may resell or use the Products in the ordinary course of its business (but not otherwise) before Adglow receives payment for the Products. However, if the Customer resells the Products before that time:

10.4.1. it does so as principal and not as Adglow’s agent; and
10.4.2. title to the Products shall pass from Adglow to the Customer immediately before the time at which resale by the Customer occurs.

10.5. At any time before title to the Products passes to the Customer, Adglow may require the Customer to deliver up all Products in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.

11. CHARGES AND PAYMENT

11.1. The price for Products:

11.1.1. shall be the price set out in the Order or, if no price is quoted, the price set out in Adglow’s published price list as at the date of the order; and
11.1.2. shall be exclusive of all costs and charges of packaging, insurance, transport of the Products, which shall be invoiced to the Customer.

11.2. The charges for Services shall either be the fixed price set out in the quote or be calculated on a time and materials basis:

11.2.1. the charges shall be calculated in accordance with Adglow’s daily fee rates, as set out in its current price list at the date of the Contract;
11.2.2. Adglow’s daily fee rates for each individual person are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days;
11.2.3. Adglow shall be entitled to charge an overtime rate of 150% of the daily fee rate on a pro rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 11.2.2 on Business Days and the overtime rate specified in the quote for any time worked on a day that is not a Business Day; and
11.2.4. Adglow shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Adglow engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Adglow for the performance of the Services, and for the cost of any materials. Adglow shall confirm which charging method is being used in the quotation.

11.3. Adglow reserves the right to:

11.3.1. increase the charges for the Services on an annual basis with effect from each anniversary of the Commencement Date to reflect any cost increase incurred by Adglow due to any factor beyond the control of Adglow (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, fuel and other costs);
11.3.2. increase the price of the Products, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Products to Adglow that is due to:

11.3.2.1. any factor beyond the control of Adglow (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
11.3.2.2. any request by the Customer to change the delivery date(s), quantities or types of Products ordered, or the Products Specification; or
11.3.2.3. any delay caused by any instructions of the Customer in respect of the Products or failure of the Customer to give Adglow adequate or accurate information or instructions in respect of the Products.

11.4. In respect of Products, Adglow shall invoice the Customer on or at any time after completion of delivery. In respect of Services, Adglow shall invoice the Customer at weekly invoices unless otherwise agreed in writing.

11.5. Where the Customer cancels the Services and/or the Products less than 5 Business Days before the agreed performance/delivery date or the performance is delayed in any way by the Customer, Adglow may invoice the Customer for the Preparatory Costs.

11.6. If the Customer cancels (including if a Customer asks to rearrange the date of the delivery of Services), more than one month before the commencement of the delivery of the Services Adglow will, at Adglow’s discretion:

11.6.1. reschedule the booking and the Customer will reimburse any costs incurred by Adglow resulting from the rescheduling; or
11.6.2. charge a cancellation fee of 25% of the total Charges relating to the cancelled Services plus any Preparatory Costs;

11.7. If the Customer cancels (including if a Customer asks to rearrange the date of the delivery of Services) between two and four weeks before the commencement of the delivery of the Services Adglow will, at Adglow’s discretion:

11.7.1. reschedule the booking and the Customer will cover any costs incurred by Adglow resulting from the rescheduling; or
11.7.2. charge a cancellation fee of 50% of the total Charges plus any Preparatory Costs;

11.8. If the Customer cancels (including if a Customer asks rearrange the date of the delivery of Services) within two weeks before the commencement of the delivery of the Services Adglow will, at Adglow’s discretion:

11.8.1. reschedule the booking and the Customer will cover any costs incurred by Adglow resulting from the rescheduling; or
11.8.2. charge a cancellation fee of 75% of the total Charges plus any Preparatory Costs;

11.9. If the Customer cancels (or asks to rearrange the date of the delivery of Services) within 48 hours of the commencement of the delivery of the Services, 100% of the total Charges shall be charged by Adglow and any rearranged delivery shall be re-quoted.

11.10. The cancellation fee set out in clauses 11.5-11.9 shall be invoiced by Adglow and payable by the Customer in accordance with clause 11.11.

11.11. The Customer shall pay each invoice submitted by Adglow:

11.11.1. within 30 days of the date of the invoice or in accordance with any credit terms agreed by Adglow and confirmed in writing to the Customer; and
11.11.2. in full and in cleared funds to a bank account nominated in writing by Adglow, and time for payment shall be of the essence of the Contract.

11.12. All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Adglow to the Customer, the Customer shall, on receipt of a valid VAT invoice from Adglow, pay to Adglow such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.

11.13. If the Customer fails to make a payment due to Adglow under the Contract by the due date, then, without limiting Adglow’s remedies under clause 18, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 11.13 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

11.14. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

12. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS

12.1. Adglow acknowledges that the Customer IPRs are and remain the exclusive property of the Customer or, where applicable, the third party licensor from whom the Customer derives the right to use them.

12.2. All Intellectual Property Rights in the Deliverables shall be the property of the Adglow and Adglow hereby provides the Customer with a full paid, non-exclusive, royalty free, perpetual licence to use the Deliverables. The parties shall execute all documents necessary to give effect to this clause 12.2.

12.3. The Customer acknowledges that all Intellectual Property Rights:

12.3.1. used for the manufacture of the Manufactured Goods that originate from Adglow; and/or
12.3.2. in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall remain the exclusive property of Adglow or, where applicable, the third party licensor from whom Adglow derives the right to use them.

12.4. The Customer grants Adglow a fully paid-up, non-exclusive, royalty-free non-transferable licence to use, copy and modify any Materials provided by the Customer to Adglow for the term of the Contract for the purpose of providing the Services and/or Manufactured Goods to the Customer.

12.5. All Intellectual Property Rights in respect of any Improvement shall belong to the party who made, developed or acquired it.

13. LICENCE TO USE TECHNOLOGY AND TRADE MARKS

13.1. The Customer grants to Adglow a non-exclusive, transferable, royalty-free licence (including the right to grant sub-licences to permitted subcontractors) to use the Customer IPRs solely for the purpose of performing its obligations under the Contract.

13.2. Adglow’s use of the Trade Marks is limited to applying them to the Products and when completing the Design Services in the form and manner specified by the Customer from time to time and for the purpose of completing the Services, and not otherwise.

13.3. Adglow shall not represent that it has any title in or right of ownership to any of the Trade Marks or do or suffer to be done any act or thing which may in any way impair the rights of the Customer in any of the Trade Marks or bring into question the validity of their registration.

14. IMPROVEMENTS

14.1. The Customer shall at its own cost provide Adglow with details of any Improvement belonging to the Customer which it wishes to be incorporated into the Manufactured Goods, or any other modification which it wishes to be made to the Manufactured Goods from time to time. The Customer grants to Adglow a non-exclusive, royalty-free, worldwide licence to use such Improvement or modification solely for the purposes of the Contract.

14.2. Adglow shall provide the Customer with details of any Improvement which is made, developed or acquired by Adglow from time to time.

14.3. The Customer may use any Improvement made, developed or acquired by Adglow for its own purposes and Adglow grants to the Customer a non-exclusive, royalty-free, for the duration of the relevant Intellectual Property Right, worldwide licence to use such Improvements.

14.4. The disclosure of any Improvements by one party to the other shall be subject to the obligations of confidentiality set out in clause 21.2.

15. IPR INDEMNITY

15.1. The Customer shall indemnify Adglow against all liabilities, costs, expenses, damages and losses (including 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 and other reasonable professional costs and expenses) suffered or incurred by Adglow arising out of or in connection with any claim made against Adglow for actual or alleged infringement of a third party’s Intellectual Property Rights or moral rights arising out of or in connection with the use of the Customer IPRs in accordance with the terms of the Contract.

15.2. If any third party makes a claim, or notifies an intention to make a claim, against Adglow that may reasonably be considered likely to give rise to a liability under this indemnity (Claim), Adglow shall:

15.2.1. as soon as reasonably practicable, give written notice of the Claim to the Customer, specifying the nature of the Claim in reasonable detail;
15.2.2. not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Customer;
15.2.3. give the Customer and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of Adglow, to enable the Customer and its professional advisers to examine them and to take copies (at the Customer’s expense) to assess the Claim; and
15.2.4. be deemed to have given the Customer sole authority to avoid, dispute, compromise or defend the Claim.

15.3. Nothing in this clause 15 shall restrict or limit Adglow’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.

16. CONTRACT MANAGEMENT

16.1. Adglow and the Customer each undertake to co-operate with each other, and to provide on reasonable notice such information as the other party may reasonably request for the proper performance of its obligations under the Contract.

16.2. Adglow and the Customer shall each nominate one or more senior managers who shall be responsible for liaising in connection with the manufacture and development of the Products, and who shall be responsible for the co-ordination of all matters relating to the Contract (Project Manager). Each party shall notify the other promptly of any change in these appointments.

16.3. All communications, documentation and materials relating to the agreement and sent to the parties shall be sent to the Project Managers or the Customer’s.

17. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

17.1. The restrictions on liability in this clause 17 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

17.2. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

17.2.1. death or personal injury caused by negligence;
17.2.2. fraud or fraudulent misrepresentation;
17.2.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and
17.2.4. defective products under the Consumer Protection Act 1987.

17.3. Subject to clause 17.2, Adglow’s total liability to the Customer shall not exceed the cap. In this clause 17.3, the cap is the greater of £100,000 and 125% per cent (one hundred and twenty five percent) of the total charges of the Contract.

17.4. Subject to clause 17.2, the following types of loss are wholly excluded:

17.4.1. loss of profits;
17.4.2. loss of sales or business;
17.4.3. loss of agreements or contracts;
17.4.4. loss of anticipated savings;
17.4.5. loss of use or corruption of software, data or information;
17.4.6. loss of or damage to goodwill; and
17.4.7. indirect or consequential loss.

17.5. Adglow has given commitments as to compliance of the Products and Services with relevant specifications in clauses 3, 6 and 9.1. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

17.6. This clause 17 shall survive termination of the Contract.

18. TERMINATION

18.1. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

18.1.1. the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
18.1.2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;18.1.3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
18.1.4. the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

18.2. Without affecting any other right or remedy available to it, Adglow may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

18.3. Without affecting any other right or remedy available to it, Adglow may terminate the Contract by giving the Customer not less than 8 weeks’ written notice.

18.4. Without affecting any other right or remedy available to it, Adglow may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and Adglow if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 18.1.2 to clause 18.1.4, or Adglow reasonably believes that the Customer is about to become subject to any of them.

19. CONSEQUENCES OF TERMINATION

19.1. On termination of the Contract:

19.1.1. the Customer shall immediately pay to Adglow all of Adglow’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, Adglow shall submit an invoice, which shall be payable by the Customer immediately on receipt;
19.1.2. the Customer shall return all of Adglow Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then Adglow may enter the Customer’s premises 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.

19.2. Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

19.3. Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.

20. FORCE MAJEURE

20.1. Adglow shall not be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event.

20.2. If the Force Majeure Event prevents, hinders or delays Adglow’s performance of its obligations for a continuous period of more than 12 weeks, the Customer may terminate the Contract by giving 2 weeks’ written notice to Adglow. Adglow shall be entitled to invoice the Customer for any Preparatory Costs incurred prior to the date of which shall be payable in accordance with clause 11.11.

21. GENERAL

21.1. Assignment and other dealings. Adglow may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Adglow.

21.2. Confidentiality. Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 17. Each party may disclose the other party’s confidential information: (i) to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 17; and (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

21.3. Notices. Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case). Any notice shall be deemed to have been received: (i) if delivered by hand, at the time the notice is left at the proper address; or (ii) 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. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

21.4. Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.

21.5. Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

21.6. No waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor prevent or restrict the further exercise of that or any other right or remedy.

21.7. Severance. If any provision of the Contract is or becomes unenforceable, it shall be deemed modified to the minimum extent necessary to make it enforceable. If such modification is not possible, the relevant provision shall be deemed deleted. Any modification to or deletion of a provision under this clause shall not affect the enforceability of the rest of the Contract.

21.8. Third party rights. No one other than a party to the Contract shall have any right to enforce any of its terms.

21.9. Rights and remedies. The rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.

21.10. 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, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

21.11. Interpretation. Clause headings shall not affect the interpretation of the Contract. A reference to writing or written excludes fax but not email. A reference to a legislative provision is a reference to it as amended, extended or re-enacted from time to time, and shall include all subordinate legislation made from time to time under that legislative provision. Any phrase introduced by the terms including, include or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

21.12. 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. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.

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