TERMS AND CONDITIONS FOR CLIENTS
1. Interpretation
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day, means a day other than a Saturday, Sunday or public holiday when banks in London are open for business.
Caburn Hope, means Caburn Hope Limited a company registered in England and Wales whose registered address is Rusbridge Lane Lewes East Sussex BN7 2XX and company number (07501294349
Caburn Hope’s Materials, means all materials, equipment, documents and other property of Caburn Hope the Intellectual Property Rights in which are owned by Caburn Hope and which are either Deliverables or are incorporated in Deliverables, excluding Third Party Materials and New Materials.
Client, means the person or firm who purchases Services from Caburn Hope as set out in the Confirmation Form.
Client Data, means data, in whatever form, owned, held and/or controlled by the Client which is made available to Caburn Hope or is otherwise created, collated or collected and/or accessed by Caburn Hope in connection with the Services.
Client Materials, means any materials provided by the Client to Caburn Hope.
Conditions, means these terms and conditions as amended from time to time in accordance with clause 12.8.
Confirmation Form, means the Caburn Hope’s Conditions’ confirmation form prepared by Caburn Hope and completed and signed by the Client and, in the absence of such form, the specifications as shall be agreed between Client and Caburn Hope in the Specification Sheet or as otherwise in writing from time to time.
Contract, means the contract between Caburn Hope and the Client for the supply of Services in accordance with these Conditions and the Confirmation Form if and as may be signed by the Client from time to time and the signing of the Confirmation Form and/or the delivery of the Services by Caburn Hope to the Client shall be deemed to be unconditional acceptance by the Client of these Conditions and the Confirmation Form.
Data Controller, has the meaning set out in the Data Protection Legislation.
Data Protection Legislation, means all applicable legislation protecting Personal Data, including in particular the Data Protection Act 1998 (and, from 25 May 2018, the GDPR) and any replacement, national implementing laws or successor legislation to the Data Protection Act 1998 or GDPR.
Data Subject, an individual who is the subject of Personal Data.
Data Processor, has the meaning set out in the Data Protection Legislation.
Deliverables, means all documents, products and materials developed by Caburn Hope or its agents, contractors and employees as part of or in relation to the Services.
GDPR, means the General Data Protection Regulation ((EU) 2016/679).
Intellectual Property Rights, means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information including knowhow and trade secrets and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Media Commission means the commission on the net amount payable by Caburn Hope to the Media Provider.
Media Provider means the individual or party responsible for planning and/or purchasing advertising space on behalf of Caburn Hope, for the purpose of advertising
Media Services means web and advertising services including but not only, video editing, web design, planning and handling advertising
Media Spend means any and all the sums charged to Caburn Hope by the Media Provider on behalf of the Client.
New Materials, means all materials (including any presentations, reports, specifications, designs, user guides, documentation and works) conceived, designed, prepared or created by or on behalf of Caburn Hope for the purposes of or pursuant to the Services or arising out of the provision of the Services and/or Deliverables excluding Software, Supplier Materials, Client Materials and Third Party Materials.
Personal Data, means has the meaning set out in the Data Protection Legislation and relates only to personal data, or any part of such personal data, in respect of which the Client is the Data Controller and in relation to which Caburn Hope is providing Services under the Contract.
Pre-existing Intellectual Property Rights, means Intellectual Property Rights existing before the commencement date of the Conditions as set out in the Confirmation Form.
Processing, has the meaning set out in the Data Protection Legislation.
Service Fees, means the fees payable by the Client for the supply of the Services in accordance with clause 5.
Services, means the services, including the Deliverables and the Media Services where appli9cable, provided by Caburn Hope to the Client as set out in the Specification Sheet.
Specification Sheet, means the description or Specification Sheet of the Services and the Service Fees as shall be agreed in writing between the parties from time to time.
Third Party Materials, means all materials which are proprietary to any third party and which are either Deliverables or are incorporated in Deliverables, excluding Supplier Materials, New Materials and Software.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body whether or not having separate legal personality;
1.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 a reference to writing or written includes e-mails.
2. Basis of contract
2.1 The Confirmation Form constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The offer to purchase the Services from Caburn Hope shall be deemed to be accepted and the Contract shall come into existence on the date on which the Client returned the signed Confirmation Form or, in the absence of an Confirmation Form, signed or otherwise, on the date in which Caburn Hope performed any act in the provision of any of the Services.
2.3 Any samples, drawings, descriptive matter or advertising issued by Caburn Hope, and any descriptions or illustrations contained in Caburn Hope’s 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 Any quotation given by Caburn Hope shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue and all amounts quoted by Caburn Hope under the Contract are exclusive of Value Added Tax as chargeable from time to time.
3. Supply of Services
3.1 Caburn Hope shall supply the Services to the Client in accordance with the Specification Sheet in all material respects.
3.2 Caburn Hope shall use all reasonable endeavours to meet any performance dates specified in the Confirmation Form or in the Specification Sheet, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Caburn Hope shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Caburn Hope shall notify the Client in any such event.
3.4 Caburn Hope warrants to the Client that the Services will be provided using reasonable care and skill.
4. Client’s obligations, undertaking and acknowledgement
4.1 The Client shall:
4.1.1 ensure that the terms of the Confirmation Form and any information it provides in the Specification Sheet are complete and accurate;
4.1.2 co-operate with Caburn Hope in all matters relating to the Services;
4.1.3 provide Caburn Hope, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities as reasonably required by Caburn Hope;
4.1.4 provide Caburn Hope with such information and materials as Caburn Hope may reasonably require from time to time to supply the Services, and ensure that such information is accurate in all material respects, is not defamatory, in breach of any Intellectual Property Rights of any third party or otherwise;
4.1.5 obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start and shall not require Caburn Hope to omit or do any act which may contravene the British Code of Advertising Practice and any other relevant codes of Practice or any relevant legislation or common law;
4.1.6 keep and maintain all Caburn Hope’s Materials at the Client’s premises in safe custody at its own risk, maintain Caburn Hope’s Materials in good condition until returned to Caburn Hope, and not dispose of or use Caburn Hope’s Materials other than in accordance with Caburn Hope’s written Confirmation or authorisation;
4.1.7 co-operate with Caburn Hope in a timely manner and hereby confirm that such co-operation is fundamental to the ability of Caburn Hope to perform the Services; and
4.1.8 provide approval for, including but not limited to, the submissions by Caburn Hope of copy, layout, artwork, storyboards and/or scripts together with on-line testing of programming and/or the cost of the various items or work required and on such approval will constitute authority for Caburn Hope to:
(a) purchase New Materials;
(b) develop the Deliverables;
(c) prepare proofs and/or publish the same in print and/or in digital as appropriate;
(d) reserve and make contracts for space, time and other facilities under the terms and conditions required by the Media Provider; and Caburn Hope shall be entitled to assume that any person holding himself/herself out to have the necessary authority to provide any approvals on behalf of the Client, has such authority.
4.2 If Caburn Hope’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
4.2.1 Caburn Hope shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays Caburn Hope’s performance of any of its obligations;
4.2.2 Caburn Hope shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Caburn Hope’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3 the Client shall reimburse Caburn Hope on written demand for any costs or losses sustained or incurred by Caburn Hope arising directly or indirectly from the Client Default.
4.3 On Caburn Hope performing the Media Services, the following shall apply:
4.3.1 the Client shall be invoiced for the Media Spend and the Media Commission immediately on placing the order with the Media provider;
4.3.2 all Media Spend shall become due and payable as of immediate effect but no later than three working days.
4.4 For the avoidance of doubt, nothing in these Conditions shall prevent Caburn Hope from publishing on its website or otherwise any or all of the Deliverables and/or New Materials relating to the Services after it was provided to the Client either in the form of news stories, contracts won, case studies or other editorial content for publicity purposes. However Caburn Hope shall not quote the Client without the Client’s approval.
5. Service Fees and payment
5.1 The Service Fees for the Services shall be invoiced by Caburn Hope and paid by the Client, all as per the Specification Sheet, in full and in cleared funds to a bank account nominated in writing by Caburn Hope, and time for payment shall be of the essence of the Contract.
5.2 Caburn Hope shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom Caburn Hope engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Caburn Hope for the performance of the Services, and for the cost of any materials.
5.3 Caburn Hope reserves the right to increase its standard hourly/daily fee rates, provided that such charges cannot be increased more than once in any 12 months period. Caburn Hope will give the Client written notice of any such increase three months before the proposed date of the increase. If such increase is not acceptable to the Client, it shall notify Caburn Hope in writing within one month of the date of Caburn Hope’s notice and Caburn Hope shall have the right without limiting its other rights or remedies to terminate the Contract by giving three months’ written notice to the Client.
5.4 Without limiting any other right or remedy of Caburn Hope, if the Client fails to make any payment due to Caburn Hope under the Contract by the due date for payment (Due Date), Caburn Hope shall have the right to charge interest on the overdue amount at the rate of four per cent per annum above the then current HSBC’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
5.5 The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against Caburn Hope in order to justify withholding payment of any such amount in whole or in part. Caburn Hope may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Caburn Hope to the Client.
6. Intellectual property rights
6.1 Except as expressly set out in the Conditions:
6.1.1 The Client shall not acquire any right, title or interest in or to the Intellectual Property Rights of Caburn Hope or its licensors, including Intellectual Property Rights in:
(a) Caburn Hope Materials;
(b) the Third Party Materials;
(c) Caburn Hope’s Pre-existing Intellectual Property Rights.
6.1.2 As long as the Client paid all outstanding fees, including but not limited to Service Fees, Caburn Hope shall not acquire any right, title or interest in or to the Intellectual Property Rights of the Client or its licensors, including:
(a) the Client Data;
(b) the Client Materials;
(c) the New Materials;
(d) Client’s Pre-existing Intellectual Property Rights.
6.2 The Intellectual Property Rights in all New Materials shall belong to and vest in the Client unconditionally and immediately on payment of the Service Fees. Caburn Hope hereby assigns, and shall procure that all third parties who may have any right, title or interest in New Materials shall assign, in each case by way of present assignment of future rights, all New Materials absolutely to the Client with full title guarantee (free from all charges, incumbrances and other rights exercisable by third parties). Caburn Hope shall procure the waiver of any Moral Rights in or relating to any New Materials.
6.3 The Client hereby grants Caburn Hope a non-exclusive, non-transferable licence to use the Client Materials and Client Data solely to the extent and for the period necessary for Caburn Hope to perform its obligations under the Conditions, such licence to terminate no later than on the termination of the Conditions. Caburn Hope shall comply with any terms or Confirmation given by the Client from time to time in relation to the use of the Client Materials and Client Data.
6.4 Caburn Hope represents that it has and will continue to have the necessary rights and licences to comply with its obligations under this Clause 6 and undertakes to execute, do and/or procure the execution or doing of such things as are reasonably necessary in order to achieve, perfect or record the assignment or grant of rights and licences in accordance with this Clause 6.
6.5 Any physical media forming part of any Deliverables shall be owned by the Client and Caburn Hope hereby transfers and agrees to procure the transfer with full title guarantee (free from all charges, incumbrances and other rights exercisable by third parties) of all right, title and interest in such media to the Client.
7. Confidentiality
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 6.1 shall survive termination of the Contract.
8. Limitation of liability
8.1 Nothing in these Conditions shall limit or exclude Caburn Hope’s liability for:
8.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
8.1.2 fraud or fraudulent misrepresentation; or
8.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2 Subject to clause 8.1:
8.2.1 Caburn Hope shall under no circumstances whatever be liable to the Client, whether in contract, tort including negligence, breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
8.2.2 Caburn Hope’s total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort including negligence, breach of statutory duty, or otherwise, shall be limited to the value of the Service Fees paid under the Contract.
8.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.4 This clause 8 shall survive termination of the Contract.
9. Termination
9.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
9.1.1 the other party commits a material breach of the Contract and if such a breach is remediable fails to remedy that breach within seven days of that party being notified in writing of the breach;
9.1.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or being a company is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or being an individual is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or being a partnership has any partner to whom any of the foregoing apply;
9.1.3 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than where a company for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
9.1.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party being a company other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
9.1.5 the other party being an individual is the subject of a bankruptcy petition or order;
9.1.6 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
9.1.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party being a company;
9.1.8 a floating charge holder over the assets of that other party being a company has become entitled to appoint or has appointed an administrative receiver;
9.1.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; 9.1.10 any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.1.2 to clause 9.1.9
inclusive;
9.1.11 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
9.1.12 the other party being an individual dies or, by reason of illness or incapacity whether mental or physical, is incapable of managing his own affairs or becomes a patient under any mental health legislation.
9.2 Without limiting its other rights or remedies, Caburn Hope 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.
9.3 Without limiting its other rights or remedies, each party shall have the right to terminate the Contract by giving the other party three months’ written notice.
9.4 Without limiting its other rights or remedies, Caburn Hope shall have the right to suspend provision of the Services under the Contract or any other contract between the Client and Caburn Hope if the Client becomes subject to any of the events listed in clause 9.1.2) to clause 9.1.12, or Caburn Hope reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.
10. Consequences of termination
10.1 On termination of the Contract for any reason:
10.1.1 the Client shall immediately pay to Caburn Hope all of Caburn Hope’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Caburn Hope shall submit an invoice, which shall be payable by the Client immediately on receipt;
10.1.2 the Client shall return all of Caburn Hope’s Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then Caburn Hope may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
10.1.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
10.1.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
11. Indemnity
11.1 The Client shall keep Caburn Hope indemnified in full against all costs, expenses, damages and losses whether direct or indirect, including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by Caburn Hope as a result of or in connection with:
11.1.1 any claim made against Caburn Hope by a third party arising out of, or in connection with, the supply of the Services, to the extent that such claim
arises out of the breach, negligent performance or failure or delay in performance of the Client’s obligations under the Contract, its employees, agents or subcontractors; and
11.1.2 any claim brought against Caburn Hope for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt, use or supply of the Services.
11.2 For the duration of the Contract and for a period of 12 months thereafter, the Client shall maintain in force, with a reputable insurance company, professional indemnity insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract and shall, on Caburn Hope’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
11.3 This clause 11 shall survive termination of the Contract.
12. General
12.1 Force majeure:
12.1.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Caburn Hope including but not limited to strikes, lock-outs or other industrial disputes whether involving the workforce of Caburn Hope or any other party, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Clients or subcontractors.
12.1.2 Caburn Hope shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
12.2 Assignment and subcontracting:
12.2.1 Caburn Hope may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
12.2.2 The Client shall not, without the prior written consent of Caburn Hope, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
12.3 Notices:
12.3.1 Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office if a company or in any other case its principal place of business, or sent by email to the other party’s main email address.
12.3.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 10.00 am on the second Business Day after posting, or 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, on the next Business Day after transmission.
12.3.3 This clause 12.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing”
shall include e-mails.
12.4 Waiver:
12.4.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
12.4.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
12.5 Severance:
12.5.1 If a court or any other competent authority finds that any provision or part of any provision of the Contract is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
12.5.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
12.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
12.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
12.8 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by Caburn Hope.
12.9 Entire agreement: The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Caburn Hope which is not set out in the Contract.
12.10 Implied terms: These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
12.11 Data protection and data processing
12.11.1 The Client and Caburn Hope acknowledge that for the purposes of the Data
Protection Legislation, the Client is the Data Controller and Caburn Hope is the Data Processor in respect of any Personal Data.
12.11.2 Caburn Hope shall process the Personal Data only in accordance with the Client’s instructions from time to time and shall not process the Personal Data for any purposes other than those expressly authorised by the Client.
12.11.3 Caburn Hope shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.
12.11.4 Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
12.11.5 Caburn Hope warrants that, having regard to the state of technological development and the costs of implementing any measures, it will:
12.11.6 take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
(a) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
(b) the nature of the data to be protected; and
12.11.7 take reasonable steps to ensure compliance with those measures.
12.11.8 Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this Clause 12.11.
12.11.9 The Client acknowledges that Caburn Hope is reliant on the Client for direction as to the extent to which Caburn Hope is entitled to use and process the Personal Data. Consequently, Caburn Hope will not be liable for any claim brought by a Data Subject arising from any action or omission by Caburn Hope, to the extent that such action or omission resulted directly from the Client’s instructions.
12.11.10 Caburn Hope may authorise a third party to process the Personal Data provided that the subcontractor’s contract:
(a) is on terms which are substantially the same as those set out in the Contract; and
(b) terminates automatically on termination of the Contract for any reason.
12.12 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation including noncontractual disputes or claims, shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
WEBSITE TERMS AND CONDITIONS
Introduction
These terms and conditions govern your use of the Caburn Hope website; by using this website, you accept these terms and conditions in full. If you disagree with these terms and conditions or any part of these terms and conditions, you should not use this website.
Licence to use the website
Unless otherwise stated, Caburn Hope own the intellectual property rights of the website and material on the website. Subject to the licence below, all these intellectual property rights are reserved.
You may view, download, print pages and documents from the website for your own personal use, subject to the restrictions set out below and elsewhere in these terms and conditions.
You must not:
- republish material from this website (including republication on another website);
- sell, rent or sub-licence material from the website;
- show any material from the website in public;
- reproduce, duplicate, copy or otherwise exploit material on this website for a commercial purpose;
- edit or otherwise modify any material on the website; or
redistribute material from this website – except for content specifically and expressly made available for redistribution. - use this website in any way that causes, or may cause, damage to the website or impairment of the availability or accessibility of the website; or in any way which is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
- use this website to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software.
- conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to this website without written consent from Caburn Hope.
- use this website to transmit or send unsolicited commercial communications.
- use this website for any purposes related to marketing without the written permission of Caburn Hope unless you wish to share pages on the website on social media.
No warranties
This website is provided ‘as is’ without any representations or warranties, express or implied. Caburn Hope makes no representations or warranties in relation to this website or the information and materials provided on this website.
Without prejudice to the generality of the foregoing paragraph, Caburn Hope does not warrant that:
this website will be constantly available, or available at all; or
the information on this website is complete, true, accurate or non-misleading.
nothing on this website constitutes, or is meant to constitute, advice of any kind.
Limitations of liability
Caburn Hope will not be liable to you (whether under the law of contract, the law of torts or otherwise) in relation to the contents of, or use of, or otherwise in connection with, this website:
to the extent that the website is provided free-of-charge, for any direct loss;
for any indirect, special or consequential loss; or
for any business losses, loss of revenue, income, profits or anticipated savings, loss of contracts or business relationships, loss of reputation or goodwill, or loss or corruption of information or data.
These limitations of liability apply even if Caburn Hope has been expressly advised of the potential loss.
Exceptions
Nothing in this website disclaimer will exclude or limit any warranty implied by law that it would be unlawful to exclude or limit; and nothing in this website disclaimer will exclude or limit Caburn Hope’s liability in respect of any:
death or personal injury caused by Caburn Hope’ negligence;
fraud or fraudulent misrepresentation on the part of Caburn Hope; or
matter which it would be illegal or unlawful for Caburn Hope to exclude or limit, or to attempt or purport to exclude or limit, its liability.
Reasonableness
By using this website, you agree that the exclusions and limitations of liability set out in this website disclaimer are reasonable.
If you do not think they are reasonable, you must not use this website.
Other parties
You accept that, as a limited liability entity, Caburn Hope has an interest in limiting the personal liability of its officers and employees. You agree that you will not bring any claim personally against Caburn Hope’s offices or employees in respect of any losses you suffer in connection with the website.
Without prejudice to the foregoing paragraph, you agree that the limitations of warranties and liability set out in this website disclaimer will protect Caburn Hope’ officers, employees, agents, subsidiaries, successors, assigns and sub-contractors.
Unenforceable provisions
If any provision of this website disclaimer is, or is found to be, unenforceable under applicable law, that will not affect the enforceability of the other provisions of this website disclaimer.
Indemnity
You hereby indemnify Caburn Hope and undertake to keep Caburn Hope indemnified against any losses, damages, costs, liabilities and expenses (including without limitation legal expenses and any amounts paid by Caburn Hope to a third party in settlement of a claim or dispute on the advice of Caburn Hope legal advisers) incurred or suffered by Caburn Hope arising out of any breach by you of any provision of these terms and conditions, or arising out of any claim that you have breached any provision of these terms and conditions.
Breaches of these terms and conditions
Without prejudice to Caburn Hope is rights under these terms and conditions, if you breach these terms and conditions in any way, Caburn Hope may take such action as Caburn Hope deems appropriate to deal with the breach, including suspending your access to the website, prohibiting you from accessing the website, blocking computers and other devices using your IP address from accessing the website, contacting your internet service provider to request that they block your access to the website and/or bringing court proceedings against you.
Variation
Caburn Hope may revise these terms and conditions without notice. Revised terms and conditions will apply to the use of this website from the date of the publication of the revised terms and conditions on this website. Please check this page regularly to ensure you are familiar with the current version.
Assignment
Caburn Hope may transfer, sub-contract or otherwise deal with Caburn Hope’ rights and/or obligations under these terms and conditions without notifying you or obtaining your consent.
You may not transfer, sub-contract or otherwise deal with your rights and/or obligations under these terms and conditions.
Severability
If a provision of these terms and conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue to be in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
Entire agreement
These terms and conditions constitute the entire agreement between you and Caburn Hope in relation to your use of this website, and supersede all previous agreements in respect of your use of this website.
Law and jurisdiction
These terms and conditions will be governed by and construed in accordance with English Law and any disputes relating to these terms and conditions will be subject to the exclusive jurisdiction of the courts of England and Wales.
TERMS AND CONDITIONS FOR SUPPLIERS
1. Interpretation
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day, means a day other than a Saturday, Sunday or a public holiday when banks in London are open for business.
Caburn Hope, means Caburn Hope Limited a company registered in England and Wales whose registered address is Rusbridge Lane Lewes East Sussex BN7 2XX and company number (2788390).
Charges, means the charges payable by Caburn Hope for the supply of the Services in accordance with clause 6.
Commencement Date has the meaning set out in the Confirmation Form.
Conditions, means these terms and conditions as amended from time to time in accordance with clause 13.8.
Confirmation Form, means Caburn Hope’s Suppliers’ confirmation form to be prepared by Caburn Hope and completed and signed by the Supplier and, in the absence of such form, the specifications as shall be agreed between Caburn Hope and the Supplier in the Purchase Order or otherwise in writing from time to time.
Contact, means a person who, the Supplier knew or ought to have known, is a client, customer, contact, supplier of Caburn Hope and/or for whom or in relation to Caburn Hope requested the Supplier to provide the Services.
Contract, means the contract between Caburn Hope and the Supplier for the supply of Services in accordance with these Conditions and the Confirmation Form if and as may be signed by the Supplier from time to time and the signing of the Confirmation Form and/or the delivery of the Services by the Supplier to Caburn Hope shall be deemed to be unconditional acceptance by the Supplier of these Conditions and the Confirmation Form
Caburn Hope Materials has the meaning set out in clause 3.3.9.
Data Protection Legislation, up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter (i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
Deliverables, means all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including without limitation drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports including drafts.
GDPR, General Data Protection Regulation ((EU) 2016/679)
Intellectual Property Rights, means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, rights in confidential information including know-how and trade secrets and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Purchase Order means the written order including the description or specification of the Services and the Service Fees as shall be agreed in writing between the parties from time to time.
Services, means the services, including without limitation any Deliverables, to be provided by the Supplier under the Contract as set out in the Purchase Order.
Supplier, means the person or firm from whom Caburn Hope purchases the Services.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body whether or not having separate legal personality;
1.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 a reference to writing or written includes e-mails.
2. Basis of contract
2.1 The Confirmation Form constitutes an offer by Caburn Hope to purchase Services in accordance with these Conditions.
2.2 The offer to purchase the Services from the Supplier shall be deemed to be accepted and the Contract shall come into existence on the date on which Supplier returned the signed Confirmation Form or, in the absence of a Confirmation Form, performed any act in the provision of any of the Services.
3. Supply of Services
3.1 The Supplier shall from the Commencement Date and for the duration of this Contract provide the Services to Caburn Hope in accordance with the terms of the Contract and the Purchase Order.
3.2 The Supplier shall meet any performance dates for the Services specified in the Confirmation Form or the Purchase Order or as notified to the Supplier by Caburn Hope from time to time.
3.3 In providing the Services, the Supplier shall:
3.3.1 co-operate with Caburn Hope in all matters relating to the Services, and comply with all instructions of Caburn Hope;
3.3.2 perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
3.3.3 use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with this Contract;
3.3.4 ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Purchaser Order and that the Deliverables shall be fit for any purpose expressly or impliedly made known to the Supplier by Caburn Hope;
3.3.5 provide all equipment, tools and vehicles and such other items as are required to provide the Services;
3.3.6 use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to Caburn Hope, will be free from defects in workmanship, installation and design;
3.3.7 obtain and at all times maintain all necessary licences and consents, and comply with all applicable laws and regulations;
3.3.8 observe all health and safety rules and regulations and any other security requirements that apply at any of Caburn Hope’s premises;
3.3.9 hold all materials, equipment and tools, drawings, specifications and data supplied by Caburn Hope to the Supplier (Caburn Hope Materials) in safe custody at its own risk, maintain Caburn Hope Materials in good condition until returned to Caburn Hope, and not dispose or use Caburn Hope Materials other than in accordance with Caburn Hope’s written instructions or authorisation; and
3.3.10 not do or omit to do anything which may cause Caburn Hope to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business, and the Supplier acknowledges that Caburn Hope may rely or act on the Services.
3.4 The Supplier’s interaction with Caburn Hope’s Contacts
During the period of this Contract the Supplier shall:
3.4.1 introduce itself to all Contacts as a representative of Caburn Hope and shall not introduce its own company or business by name or otherwise
3.4.2 ensure that all and any emails, faxes, letters and such other correspondence that is sent to the Contacts, shall be sent from Caburn Hope’s email address or headed letter, as appropriate, and not from the Supplier’s own email address or headed paper;
3.4.3 Copy Caburn Hope onto all such emails, faxes and letters sent as per Clause 3.4.2 above;
3.4.4 Notify Caburn Hope immediately if urgent but, in any event, within no more than 48 hours of any work or Services provided to the Contact;
3.4.5 Further to any direct contact made between the Contact and the Supplier, whether prior to, during or subsequent to the instructions received by Caburn Hope, then the Supplier shall:
(a) inform Caburn Hope as soon as possible but, in any event, within no more that 48 hours of such contact being made; and
(b) not provide the Services or on such direct contact without Caburn Hope’s written confirmation and if such confirmation also includes parameters for the provision of the Services, the Supplier shall comply with such parameters.
3.4.6 to supply proof of delivery for items ordered if required by Caburn Hope and should there be a dispute with a Contact re delivery and Caburn Hope incurred any cost as a result, including but not limited to resending of the order, that clause 9 will apply;
3.4.7 not discuss cost of any products and/or services it supplies directly with the Contact and/or invoice the contact directly. All invoices shall be sent to Caburn Hope quoting the Purchase Order Number;
3.4.8 deliver all items to the Contact as instructed by Caburn Hope in plain label i.e. with no supplier details or branding on anything including labels and packaging, including but not limited to cartons and delivery notes.
4. Caburn Hope remedies
4.1 If the Supplier fails to perform the Services by the applicable dates, Caburn Hope shall, without limiting its other rights or remedies, have one or more of the following rights:
4.1.1 to terminate the Contract with immediate effect by giving written notice to the Supplier;
4.1.2 to refuse to accept any subsequent performance of the Services which the Supplier attempts to make;
4.1.3 to recover from the Supplier any costs incurred by Caburn Hope in obtaining substitute services from a third party;
4.1.4 where Caburn Hope has paid in advance for Services that have not been provided by the Supplier, to have such sums refunded by the Supplier; or
4.1.5 to claim damages for any additional costs, loss or expenses incurred by Caburn Hope which are in any way attributable to the Supplier’s failure to meet such dates.
4.2 These Conditions shall extend to any substituted or remedial services provided by the Supplier.
4.3 Caburn Hope’s rights under this Contract are in addition to its rights and remedies implied by statute and common law.
5. Caburn Hope’s obligations
5.1 Caburn Hope shall:
5.1.1 provide the Supplier with reasonable access at reasonable times to Caburn Hope’s premises for the purpose of providing the Services; and
5.1.2 provide such information to the Supplier as the Supplier may reasonably request and Caburn Hope considers reasonably necessary for the purpose of providing the Services.
6. Charges and payment
6.1 The Charges for the Services shall be set out in the Purchase Order, and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by Caburn Hope, the Charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
6.2 The Supplier shall invoice Caburn Hope on completion of the Services. Each invoice shall include such supporting information required by Caburn Hope to verify the accuracy of the invoice, including but not limited to the relevant Purchase Order number to be sent by post or electronic mail unless otherwise agreed in writing.
6.3 In consideration of the supply of the Services by the Supplier, Caburn Hope shall pay the invoiced amounts in accordance with the Purchase Order.
6.4 If Caburn Hope fails to pay any amount properly due and payable by it under the Contract, the Supplier shall have the right to charge interest on the overdue amount at the rate of 2% per cent per annum above the base rate for the time being of HSBC accruing on a daily basis from the due date up to the date of actual payment, whether before or after judgment. This clause shall not apply to payments that Caburn Hope disputes in good faith.
6.5 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and shall allow Caburn Hope to inspect such records at all reasonable times on request.
6.6 Caburn Hope may, without limiting its other rights or remedies, set off any amount owed to it by the Supplier against any amount payable by Caburn Hope to the Supplier under the Contract.
7. Data protection and data processing
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
7.2 The parties acknowledge that for the purposes of the Data Protection Legislation, Caburn Hope is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
7.3 Without prejudice to the generality of clause 7.1, Caburn Hope will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Supplier for the duration and purposes of the Contract.
7.4 Without prejudice to the generality of clause 7.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
7.4.1 process that Personal Data only on the written instructions of Caburn Hope unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (Applicable Laws).
7.4.2 Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify Caburn Hope of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying Caburn Hope;
7.4.3 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by Caburn Hope, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
7.4.4 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
7.4.5 not transfer any Personal Data outside of the European Economic Area unless the prior written consent of Caburn Hope has been obtained and the following conditions are fulfilled:
(a) Caburn Hope or the Supplier has provided appropriate safeguards in relation to the transfer;
(b) the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
(c) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(d) the Supplier complies with reasonable instructions notified to it in advance by Caburn Hope with respect to the processing of the Personal Data;
7.4.6 assist Caburn Hope in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
7.4.7 notify Caburn Hope without undue delay on becoming aware of a Personal Data breach;
7.4.8 at the written direction of Caburn Hope, delete or return Personal Data and copies thereof to Caburn Hope on termination of the agreement unless required by Applicable Law to store the Personal Data; and
7.4.9 maintain complete and accurate records and information to demonstrate its compliance with this clause 7.
7.5 Caburn Hope consents to the Supplier appoint a third-party processor of Personal Data under the Contract to process Personal Data if:
7.5.1 the Supplier obtains the prior written consent from Caburn Hope;
7.5.2 the Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement that contains terms substantially similar to those set out in this clause 7, in particular, in relation to requiring appropriate technical and organisational data security measures, and, upon the Caburn Hope’s written request, provides the Supplier with copies of such contracts; and
the Supplier maintains control over all Personal Data it entrusts to the third-party processor.
7.6 The Supplier agrees to indemnify, keep indemnified and defend at its own expense Caburn Hope against all costs, claims, damages or expenses incurred by Caburn Hope or for which Caburn Hope may become liable due to any failure by the Supplier, its employees, subcontractors or agents to comply with any of its obligations under this Contract or the Data Protection Legislation.
8. Intellectual property rights
8.1 In respect of any goods that are transferred to Caburn Hope under this Contract, including without limitation the Deliverables or any part of them, the Supplier warrants that it has full clear and unencumbered title to all such items, and that at the date of delivery of such items to Caburn Hope, it will have full and unrestricted rights to transfer all such items to Caburn Hope.
8.2 The Supplier assigns to Caburn Hope, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the products of the Services, including for the avoidance of doubt the Deliverables.
8.3 The Supplier shall obtain waivers of all moral rights in the products, including for the avoidance of doubt the Deliverables, of the Services to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
8.4 The Supplier shall, promptly at Caburn Hope’s request, do all such further acts and things and the execution of all such other documents as Caburn Hope may from time to time require for the purpose of securing for Caburn Hope the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights assigned to Caburn Hope in accordance with clause 8.2.
8.5 All Caburn Hope Materials are the exclusive property of Caburn Hope.
9. Indemnity
9.1 The Supplier shall indemnify Caburn Hope against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Caburn Hope arising out of or in connection with:
9.1.1 any claim made against Caburn Hope for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services (excluding Caburn Hope Materials);
9.1.2 any claim made against Caburn Hope by a third party arising out of or in connection with the supply of the Services.
9.2 This clause 9 shall survive termination of the Contract.
10. Confidentiality
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to, or otherwise obtained by, the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 10 shall survive termination of the Contract.
11. Termination
11.1 Without limiting its other rights or remedies, Caburn Hope may terminate the Contract with immediate effect by giving written notice to the Supplier if:
11.1.1 the Supplier commits a material or persistent breach of the Contract and if such a breach is remediable fails to remedy that breach within seven days of receipt of notice in writing of the breach;
11.1.2 the Supplier suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or being a company is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or being an individual is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or being a partnership has any partner to whom any of the foregoing apply;
11.1.3 the Supplier commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than where a company for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier;
11.1.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Supplier being a company other than for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier;
11.1.5 the Supplier being an individual is the subject of a bankruptcy petition order;
11.1.6 a creditor or encumbrancer of the Supplier attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or
enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
11.1.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Supplier being a company;
11.1.8 a floating charge holder over the assets of the Supplier being a company has become entitled to appoint or has appointed an administrative receiver;
11.1.9 a person becomes entitled to appoint a receiver over the assets of the Supplier or a receiver is appointed over the assets of the Supplier;
11.1.10 any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1.2 to clause
11.1.9 inclusive;
11.1.11 the Supplier suspends or threatens to suspend, or ceases or threatens to cease to carry on, all or a substantial part of its business; or
11.1.12 the Supplier being an individual dies or, by reason of illness or incapacity whether mental or physical, is incapable of managing his own affairs or becomes a patient under any mental health legislation.
11.2 Without limiting its other rights or remedies, Caburn Hope may terminate the Contract by giving the Supplier one month’s written notice.
12. Consequences of termination
12.1 On termination of the Contract for any reason:
12.1.1 the Supplier shall immediately deliver to Caburn Hope all Deliverables whether or not then complete, and return all Caburn Hope Materials. If the Supplier fails to do so, then Caburn Hope may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
12.1.2 the accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination; and
12.1.3 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
12.2 The Supplier undertakes that it will not without the prior written consent of Caburn Hope directly or indirectly and whether alone or in conjunction with or on behalf of any other Person and whether as a principal, shareholder, director, employee, agent, consultant, partner or otherwise for the duration of this Agreement and for a period of 12 months from the Termination Date:
12.2.1 be engaged, concerned or interested in any business which during that period has supplied goods or services to Caburn Hope if such engagement, concern or interest causes or would cause the supplier to cease or material reduce its dealings with Caburn Hope; and
12.2.2 be or become in any capacity whatsoever engaged, concerned, interested in, deal with, accept custom, solicit, interfere with or endeavour to entice away from Caburn Hope work from any person who was a Contact of Caburn Hope during the period of this agreement.
12.3 The Supplier undertakes that it will not without the prior written consent of Caburn Hope directly or indirectly and whether alone or in conjunction with or on behalf of any other person and whether as a principal, shareholder, director, employee, agent, consultant, partner or otherwise use in connection with any business any name or any colourable imitation of Caburn Hope’s name or logo.
13. General
13.1 Force majeure:
Neither party shall be liable to the other as a result of any delay or failure to perform its obligations under the Contract if and to the extent such delay or failure is caused by an event or circumstance which is beyond the reasonable control of that party which by its nature could not have been foreseen by such a party or if it could have been foreseen was unavoidable.
13.2 Assignment and subcontracting:
13.2.1 The Supplier shall not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Caburn Hope and if such consent is given, clause 4.2 shall apply.
13.2.2 Caburn Hope may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
13.3 Notices:
13.3.1 Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office if a company or in any other case its principal place of business, or sent by email to the other party’s main email address.
13.3.2 Any notice or communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or 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, on the next Business Day after transmission.
13.3.3 This clause 13.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall include e-mails and for the avoidance of doubt notice given under this Contract shall be validly served if sent by e-mail.
13.4 Waiver and cumulative remedies:
13.4.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.4.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
13.5 Severance:
13.5.1 If a court or any other competent authority finds that any provision or part of any provision of the Contract is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.5.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
13.6 No partnership:
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
13.7 Third parties:
A person who is not a party to the Contract shall not have any rights under or in connection with it.
13.8 Variation:
Any variation, including any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by Caburn Hope.
13.9 Governing law and jurisdiction:
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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
14.10 Media & Publicity
The Supplier must obtain prior written approval from Caburn Hope on a project by project basis to indicate, infer or include information about all or any part of the Services undertaken for or on behalf of Caburn Hope in their, including but not limited to, portfolio, publicity materials, website or any such other marketing or information and Caburn Hope reserves the right to agree to provide such written approval on certain conditions being met as it may see fit from time to time, including but not limited the requirement for all work featured in an online portfolio to include a hyperlink to Caburn Hope’s website www.caburnhope.co.uk (or such other website that may exist at the time).