The Customer's attention is particularly drawn to the provisions of clause 10 (Limitation of liability).

1. Interpretation

The following definitions and rules of interpretation apply in these Conditions. 1.1 Definitions:

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

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 14.9.

Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with the Order, these Conditions and the Proposal.

Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.

Customer: the person or firm who purchases the Services from the Supplier.

Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications)[; and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.

Deliverables: the deliverables set out in the Proposal produced by the Supplier for the Customer.

Force Majeure Event: has the meaning given to it in clause 13.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, 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 written order for the supply of Services contained in the Proposal signed by the Customer.

Proposal: the proposal, including specific assumption and exclusions, agreed between the Supplier and the Customer in writing and forming part of this agreement, as subsequently detailed or amended in accordance with clause 4.

Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification.

Service Specification: the description or specification for the Services provided in the Proposal subject to any modifications which may be agreed subsequently.

Supplier: Smorgasbord Studio Limited, registered in England and Wales with company number 06640681.

Supplier Materials: has the meaning given in clause 6.1(j).

UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

1.2 Interpretation:

(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 and 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 all subordinate legislation made under that statute or statutory provision.

(d)Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

(e)A reference to writing or written includes fax and email.

2. The Proposal and Basis of Contract

2.1 The Order signed by the Customer constitutes an offer by the Customer to purchase Services in accordance with these Conditions. The Customer must submit the signed Order to the Supplier within 30 days of the date of the Proposal, otherwise the proposal in the Proposal will lapse.

2.2  The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date) and the Proposal shall form part of the Contract. 
2.3  Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Deliverables or illustrations or descriptions of the Services contained in the Supplier's website, catalogues or brochures 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. 
2.4  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 trade, custom, practice or course of dealing. 
3. Supply of Services

3.1  The Supplier shall supply the Services to the Customer in accordance with the Service Specification in all material respects. 
3.2  The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services. 
3.3  The Supplier 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 the Supplier shall notify the Customer in any such event. 
3.4  Where the Customer informs the Supplier that it wishes to amend the Service Specification the Supplier will set out any increased costs and/or delay which will result from the change, to be agreed in writing by the Customer in advance of the work being carried out. 
3.5  The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill. 
3.6  Where the Supplier appoints a media agency, such agency will be responsible for leading and determining the media buying strategy and will liaise with the Supplier to confirm the list of required applications as soon as they have been agreed in order to allow enough time for the required design, artwork and delivery/supply.

4. Next Steps

4.1 Subsequent to the Supplier accepting the Order in accordance with clause 2.2, where relevant and to the extent not contained in the Proposal:

the Supplier will provide the Customer with the following:
(i)further detailed Service Specification; 
(ii)an invoicing schedule or payment plan; and 
(iii)a project plan and schedule including details milestone presentations and where further Customer approvals will be required; and 
(b)the Customer will provide the Supplier with the following: 
(i)the name of the Customer’s project lead who will be responsible for liaising internally across the Customer’s business, collating Customer feedback and working with the Supplier to deliver against the agreed project plan.

5. Estimate of fees

5.1 Costs will be sourced and supplied as required by the project as set out in the Proposal. Unless otherwise stated in the Proposal, the fees and costs in the Proposal are estimates only and exclude:

(a)external costs including photography, stock imagery, illustration, typography, printing, production and font purchase, translation, naming, trade marking and associated research and/or legal processes; 
(b)expenses incurred during the project including travel, accommodation, subsistence for film shoots, photoshoots and couriers.

6.Customer's obligations

6.1 The Customer shall:

(a)ensure that the terms of the Order and any information it provides in the Service Specification are complete and accurate; 
(b)comply with the Customer requirements set out in the Order including complying with deadlines and providing feedback and approvals; 
(c)ensure that all key decision-makers from the Customer’s project team are present at milestone presentations and/or meetings to ensure clarity of communication and collated feedback; 
(d)co-operate with the Supplier in all matters relating to the Services;

(e)provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;

(f)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 complete and accurate in all material respects;

(g)where necessary, prepare the Customer’s premises for the supply of the Services;

(h)obtain and maintain all necessary licenes, permissions and consents which may be required for the Services before the date on which the Services are to start;

(i)comply with all applicable laws, including health and safety laws;

(j)keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and

(k)comply with any additional obligations as set out in the Service Specification.

6.2 If the delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

Supplier's performance of any of its obligations under the Contract is prevented or

(a) without limiting or affecting any other right or remedy available to it, the Supplier 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 the Supplier's performance 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 Supplier's failure or delay to perform any of its obligations as set out in this clause 6.2; and

(c)the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

6.3 The charges for Services shall be calculated on a time and materials basis:

(a)the charges shall be calculated in accordance with the Supplier's daily or hourly fee rates in GBP (Sterling), as set out in the Proposal;

(b)the Supplier's daily fee rates for each individual person are calculated on the basis of an eight-hour day from 9.00 am to 5.30 pm worked on Business Days; and

(c)the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier 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 the Supplier for the performance of the Services, and for the cost of any materials; and

(d)the Supplier recommends holding budget reviews at the end of each phase of the project.

6.4 The Supplier reserves the right to increase the rates charged for the Services on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index;

6.5 The Customer shall pay each invoice submitted by the Supplier:

(a)within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and

(b)in full and in cleared funds to a bank account nominated in writing by the Supplier,

and time for payment shall be of the essence of the Contract.

6.6 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 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.

6.7 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 11 (Termination), 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 6.7 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%. 
6.8 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). 
7. Intellectual property rights

7.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier. 
7.2 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.

7.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 7.2. 
7.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non- transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer. 
8.Data protection

8.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation. In this clause 8, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.

8.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller of its personal data and the personal data of its employees and the Supplier is the processor. 
8.3 Without prejudice to the generality of clause 8.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract. 
8.4  To the extent that the Supplier collects and processes the personal data of the Customer or its employees such as their email addresses it will do so in accordance with the privacy notice available on the Supplier’s website.

9. Confidentiality

9.1 Subject to any other terms which may been agreed between the parties, 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, affairs, customers, clients or suppliers of the other party, except as permitted by clause 9.2. 
9.2  Subject to any other terms which may been agreed between the parties, 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 12; and 
(b)as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

9.3 Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.

10. Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

10.1  The Supplier has in respect of its own legal liability, obtained professional indemnity insurance cover not exceeding £1 million and public and products liability insurance not exceeding £5 million. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.

10.2  The restrictions on liability in this clause 10 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

10.3  Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:

(a)death or personal injury caused by negligence;

(b)fraud or fraudulent misrepresentation; and

(c)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).

10.4 Subject to clause 10.3, the Supplier's total liability to the Customer shall not exceed the 150% of the amount paid by the Customer under this Contract or £1 million, whichever is less.

10.5 This clause 10.5 sets out specific heads of excluded loss and exceptions from them:

(a)Subject to clause 10.3, the types of loss listed in clause 10.5(b) are wholly excluded by the parties.

(b)The following types of loss are wholly excluded:

(i)loss of profits;

(ii)loss of sales or business;

(iii)loss of agreements or contracts;

(iv)loss of anticipated savings;

(v)loss of use or corruption of software, data or information;

(vi)loss of or damage to goodwill;and

(vii)indirect or consequential loss. 
10.6  The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 3. 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.

10.7  Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

10.8  This clause 10 shall survive termination of the Contract.

11. Termination

11.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party not less than two months' written notice.

11.2 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:

(a)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), 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;

(b)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

(c)the other party’s financial position deteriorates to such an extend that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

11.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:

(a) the customer fails to pay any amount due under the Contract on the due date for payment; or

(b) purports to change the Service Specification without agreement of the Supplier.

11.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier 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 11.2 (a) to clause 11.2 (c), or the Supplier reasonably believes that the Customer is about to become subject to any of them.

12. Consequences of termination

12.1 On termination of the Contract:

(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, 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 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.

12.2 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.

12.3 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.

13.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 result from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). 
14.General

14.1 Assignment and other dealings

(a)The Supplier 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.

(b)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 the Supplier.

14.2Notices.

(a)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 as its registered office (if a company)or its principal place of business (in any other case).

(b)Any notice shall be deemed to have been recieved:

if delivered by hand, on signature of a delivery receipt; and

if sent by pre-paid first-class post or other next working day delivery service, at 9:00am on the second Business Day after posting or at the time recorded by the delivery service.

(c)This clause 14.2 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.

(d)A notice given under the Contract is not valid if sent by email.

14.3Severance. 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 14.3 shall not affect the validity and enforceability of the rest of the Contract.

14.4 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. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

14.5 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.

14.6 Entire agreement.

(a) 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.

(b) Each party acknowledges that in entering into the Contract it does not rely on, and 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 [or negligent misrepresentation] based on any statement in the Contract.

14.7 Third party rights.

(a)Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

(b)The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

14.8 Conflict. If there is any conflict or ambiguity between the terms of:

(a) the Order;

(b) these Conditions; and

(c) the Proposal,

a term contained in a document higher in the list shall have priority over one contained in a document lower in the list.

14.9 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).

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

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