These Terms and Conditions shall apply to the provision of services by Digital Signage Systems MCR Ltd of Unit 1 Clifton House Union Street, Swinton, Manchester, England, M27 4HL. Registered Company’s House number 14233776 (“the Company”) to customers that require their services.
1.1 Definitions:
Agreement: means the contract into which the Parties will enter on the Customer’s acceptance of Schedule 1 which shall incorporate, and be subject to, these Terms and Conditions.
Agreed Date: means the date on which the provision of the Services will commence as agreed by the Parties as held in Schedule 1;
Agreed Times: means the times which the Parties shall agree upon during which the Installation Team shall have access to the Property to render the Services as stated in Schedule 1;
Business Day: means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in London;
Client: the party named in this Contract.
Client Materials: any materials provided by the Client which The Company shall use in carrying out any Works.
Contract: the contract between the Client and The Company for the supply of the Works and/or Deliverables in accordance with these Standard Terms and the Confirmation Letter.
Confidential Information: means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with the Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such); Deliverable: any deliverable specified in the Confirmation Letter which The Company agree to provide as part of the Works.
Equipment: any physical asset and associated software which is detailed in Schedule 1
Fees: the charges payable by the Client for the supply of the Works by the Company as set out in Schedule 1.
The Company: Digital Signage Systems MCR Ltd (‘the Company’) was incorporated in England under registration number 14233776; Registered Office: Unit 1 Clifton House Union Street, Swinton, Manchester, England, M27 4HL.
Works: the works, including the provision of any Deliverable, to be provided by The Company pursuant to this Contract, as set out in Schedule 1
Work Area: means the part of the Property within which the Services are to be rendered.
Works Start Date: the day on which The Company is to start provision of the Works, as set out in Schedule 1
1.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3 “these Terms and Conditions” is a reference to these Terms and Conditions and each of the Schedules as amended or supplemented at the relevant time;
1.2.4 a Schedule is a schedule to these Terms and Conditions;
1.2.5 a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule; and
1.2.6 a “Party” or the “Parties” refer to the parties to the Agreement.
1.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
1.4 Words imparting the singular number shall include the plural and vice versa.
1.5 References to any gender shall include the other gender.
1.6 References to persons shall include corporations.
The Contract shall begin on the earlier of the Works Start Date and the date the Works commence. The Contract shall continue, unless terminated earlier in accordance with its terms, until the Works are concluded, or the Contract is terminated in accordance with clause 8.
The Contract shall begin on the earlier of the Works Start Date and the date the Works commence. The Contract shall continue, unless terminated earlier in accordance with its terms, until the Works are concluded, or the Contract is terminated in accordance with clause 8.
3.1 The Company shall supply the Works to the Client in accordance with the Contract.
3.2 . In supplying the Works, The Company shall:
(a) perform the Works with reasonable care and skill;
(b) use reasonable endeavours to perform the Works in accordance with the description set out in Schedule 1;
(c) Perform a full survey and provide detailed drawings before and after installation;
(d) obtain any releases required for the use of any Deliverables; and
(e) comply with all applicable laws, statutes, regulations from time to time in force for the provision of the Works, provided that;
(i) The Company shall not be liable under this agreement if, as a result of such compliance, it is in breach of any of its obligations under this agreement, and
(ii) The Company is not responsible for confirming the Clients legal and regulatory obligations, and
(iii) The Company shall not be responsible for the Clients compliance with its legal or regulatory obligations save for the provision of the Works.
4.1 The Client shall:
(a) co-operate with The Company in all matters relating to the Works;
(b) provide such access that The Company requires to calls or any premises to carry out the Works;
(c) meet the Client Obligations specified in Schedule 1;
(d) provide, for the Company, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Client’s premises, office accommodation, data and other facilities as reasonably required by the Company ; and
(e) provide, in a timely manner, such information as the Company may reasonably require, and ensure that it is accurate in all material respects.
(f) Be responsible for checking the accuracy of all information, text, names, website url, contact numbers and other information contained in finished outputs.
(g) Ensure that the space which is to be used is cleared of debris during survey and during installation.
(h) Ensure that all electrical outlets which power the equipment in no less that 1 metre/100 cm’s from the digital screens which are to be provided under Schedule 1.
(i) Ensure that the equipment, once installed is covered by all the reverent insurances in order to validate any warranty which is attached to the asset.
(j) Allow entry to the Premises in order for a full and complete survey to be carried out by the Installation Team.
(k) Once installed, any movement of equipment by the Client will void and invalidate any agreements made with the Company and may terminate this agreement.
4.2 If The Company ‘s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees (including non-payment of an invoice), The Company shall:
(a) not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay;
(b) be entitled to payment of the Fees which it may reasonably expect to have received despite any such prevention or delay; and
(c) be entitled to recover any additional costs, charges or losses The Company sustains or incurs that arise directly or indirectly from such prevention or delay.
5.1 The Company and its licensors shall retain ownership of all its intellectual property rights that it holds prior to and generates during the period of this agreement, including those contained in any Deliverable.
5.2 The Company shall licence the Client to use any Deliverable provided as part of the Works for the purposes specified in Schedule 1 and/or its internal requirements and/or to provide to any regulator or similar body for the purposes of demonstrating the results of the Works only. Intellectual property in any Deliverable shall only transfer to the Client if specified in Schedule 1, on such terms as may be specified and subject to any licence or release from a third party that may be required. Where any intellectual property is transferred it shall not include any intellectual property which was not developed as part of the Works which shall be licenced as may be required in accordance with clause 5.1.
5.3 The Clients licences the Company to use any Client Materials provided as required for the provision of the Works and/or to the requirements of any regulator or similar body for the purpose of demonstrating its entitlement to use the same.
5.4 Each party shall indemnify and keep indemnified and hold harmless the other against any loss or damage, costs, expenses, damages and losses (limited to any direct losses, but including interest, penalties and reasonably incurred legal costs and all other reasonably incurred professional costs and expenses) suffered or incurred by the indemnified party in connection with any claim by a third party claim for the actual or alleged infringement of a third party’s intellectual property rights arising in connection with the Deliverables (where the indemnity is from The Company ) and the Client Materials (where the indemnity is from the Client), excluding any claim caused by an action of the indeminified party, such indemnity to be capped at a maximum amount of £100,000 in aggregate for any and all claims.
5.5 Except as specifically provided in this agreement, the enforcement and protection of a party’s intellectual property rights shall be in the sole discretion and control of that party and any and all recoveries resulting from such enforcement or protection actions shall be retained by that party.
5.6 The Company retain the intellectual property rights in the Deliverables unless otherwise set out in the Confirmation Letter or in a written notification signed by the Directors of the Company. For the avoidance of doubt the Company ’s retained ownership includes (without limitation) all rights to royalty payments which may arise as a result of the broadcast of a Deliverable or a part thereof.
6.1 In consideration for the provision of the Works, the Client shall pay the Company the Fees in accordance with this clause Error! Reference source not found..
6.2 All amounts payable by the Client exclude amounts in respect of value added tax (VAT), which the Client shall additionally be liable to pay to the Company at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
6.3 Unless otherwise stated in Schedule 1, the Company shall submit invoices on a monthly basis which are to be paid within [7/10/30] days from the date of invoice.
6.4 The Company shall submit further invoices for Works if the Works deviate from Schedule 1.
6.5 The Client shall pay each invoice due and submitted to it by The Company , within [7/10/30] days of its date, by BACS transfer to a bank account nominated in writing by The Company .
6.6 If the Client fails to make any payment due to the Company under this Contract by the due date for payment, then, without limiting The Company ‘s remedies under clause Error! Reference source not found.:
(a) the Client shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
(b) The Company may suspend all Works until payment has been made in full.
6.7 All amounts due under this agreement shall be paid by the Client to The Company in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.8 No intellectual property shall be licenced by The Company or transferred by them unless and until all Fees are paid in full.
6.9 Due to the nature of the agreement, the the Company may revise the Fees by providing 3 months notice.
7.1 Nothing in this Contract shall limit or exclude the Company ‘s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
7.2 Subject to clause 1.1, The Company shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill;
(g) fines or penalties;
(h and (i) any indirect or consequential loss.
7.3 Subject to clause 1.1, The Company ‘s total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Contract shall be limited to 20% of the Fees paid by the Client under this Contract.
7.4 If the equipment is damaged then the Client will still be liable for the Fees set out in Schedule 1 under the terms in Clause 6.
8.1 Without affecting any other right or remedy available to it, either party to this Contract may terminate it with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) 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;
(c) 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
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under this Contract has been placed in jeopardy.
8.2 Without affecting any other right or remedy available to it, The Company may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment and remains in default not less than 30 days after being notified to make such payment.
8.3 On termination of this Contract for whatever reason:
(a) the Client shall immediately pay to the Company all of the Company ‘s outstanding unpaid invoices and interest and, in respect of Works supplied but for which no invoice has been submitted, The Company may submit an invoice, which shall be payable immediately on receipt;
(b) termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination; and
(c) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
9.1 Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
9.2 Assignment and other dealings.
(a) The Client shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Contract without the Company ’s prior written consent.
(b) The Company may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under this Contract.
9.3 Confidentiality.
(a) Each party undertakes that it shall not at any time during this Contract, and for a period of five years after termination of this 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 1.3(b).
(b) Each party may disclose the other party’s confidential information:
(i) 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. 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 1.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Contract.
9.4 Entire agreement.
(a) This 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 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 this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
9.5 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
9.6 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:
(a) waive that or any other right or remedy; or
(b) prevent or restrict the further exercise of that or any other right or remedy.
9.7 Severance. If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Contract.
9.8 Data Protection Both parties shall comply at all times with the Data Protection Legislation and shall perform its obligations under the Contract in such a way as to comply with the obligations under the Data Protection Legislation.
9.9 Notices.
(a) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or email
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 1.9(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
9.10 Third party rights. No one other than a party to this agreement shall have any right to enforce any of its terms.
9.11 Bribery. The parties shall comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010.
9.12 Governing law. This 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. 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 this Contract or its subject matter or formation.
10.1 Neither party shall, for a period of 12 months from the date of this Agreement, (except with the prior written consent of the other party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the other party, any employee of that other party who is employed or engaged in any services under this Contract.
10.2 This provision shall not apply in respect of any applications to a publicly available job application, other than applicants from who are in a management role where it shall continue to apply.