The following definitions apply in this agreement.
“The Agreement” means the signed Proposal.
“The Brief” means the brief set out in the Proposal or if a separate document referred to in the Proposal.
“Business Day”: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business
“Concept” means the branding, marketing or design concept formulated by Emotio pursuant to the Brief.
“Customer Content” means any text, corporate images, photographs, illustrations or other content supplied by the Client to Emotio.
“The Customer” means the person, firm or corporation referred to in the Proposal.
“Contract” means this Agreement which is formed by Emotio signing the Proposal which the Customer has signed already and any amendments to this Agreement.
“The Advance Payment” means an advance payment as detailed in the Proposal.
“Effective Date”: the date of this agreement
“Emotio” means Emotio Design Group Limited (registered No. 07110783) whose registered office is at William Old Centre, Ducks Hill Road, Northwood HA6 2NP
“Emotio’s content” means any content originated by Emotio.
“Technology” means the desktop/mobile website or web application used or to be developed by Emotio for the Customer under this Agreement.
“The Estimate” means the Proposal provided by Emotio to the Customer.
“Goods” means the various incorporations of the brand, marketing activity or design in the physical/virtual form as set out in the Proposal.
“Intellectual Property Rights” means any and all vested contingent and future rights, including any extensions or renewals as far as possible in perpetuity, of copyright, Emotio rights, know-how, patent, registered Emotio’s right, service mark, trademark, moral and any other intellectual property rights of any description whatsoever.
“The Proposal” The document or documents created by Emotio describing its offer to provide services to the customer.
“Territory” means the world.
“Website Design and Development” has the meaning attributed to such concepts defined by Emotio in the Proposal.
“Work” means the final products and services or goods developed by Emotio pursuant to the Brief and accepted as such by the Customer.
1.1 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.5 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.6 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.7 A reference to writing or written includes faxes and email.
1.8 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.9 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Emotio production obligations in fulfilling the Work.
2.1.1 Emotio shall be responsible, subject to the Proposal for the production and delivery of the Work specified in the Brief to the Customer.
2.1.2 Unless set out in the Proposal all other matters relating to the commissioning of paper, printing, photographs, stock images and any other Emotio work, binding and cover, shall be the responsibility of the Customer and its agents who shall be responsible to ensure payment for the same. If the Customer wishes Emotio to commission any of these items then the same will be charged at an agreed rate and an agreed advance on any relevant sums plus value added tax or relevant sales tax shall be required in advance of any such work being commissioned.
2.1.3 Emotio’s web systems run on bespoke or open source software on DNA Digital Holdings Limited servers and will be subject to their hosting terms. If the Customer requires these web systems to run on other hosted servers it will be necessary to make arrangements prior to starting the project. Portability of these sites will occur additional costs which will be the responsibility of the Customer and for which Emotio can render an additional invoice for such costs.
3. Customer obligations
3.1 The Customer shall be forwarded by Emotio proofs for feedback/approval. The Customer undertakes to read, check and correct the Work and provide feedback on any amendments required to Emotio within such period of time as shall have been mutually agreed as set out in the Project plan or within two weeks of receipt, failing which Emotio reserves the right to raise any related invoices for payment. Once approval is received from the Customer Emotio shall have no liability as to any typographical, design or content related mistakes subsequently identified.
3.2 Once approved, costs of all corrections and alterations made by Emotio in the approved artwork in accordance with clause 3.1 shall be borne by the Customer.
3.3 To perform its obligations in the Proposal.
3.4 The Customer agrees that if it is later than four weeks in fulfilling its obligations under this Agreement including payment of invoices Emotio can invoice a revisiting charge for any additional work involved in the project at a charge of £85 per hour.
4. Proprietory rights
4.1 The Customer shall own all right, title, and interest in and to the Client Content. Subject to Clause 4.2 the Emotio shall own all Intellectual Property, right, title and interest in and to Content, Technology and the Marketing Concept of Emotio.
4.2 On full payment of any sums due as set out in Clause 8 the Company will grant the Client a perpetual, non-exclusive, non-transferable licence to all Intellectual Property Rights in the Work throughout the Territory subject to clause 4.3 below.
4.3 The licence hereby granted to the Client in respect of the Work is solely in respect of the uses as stated on the Brief within the Territory and the Company subject to Clause 4.2 hereby grants a perpetual licence in respect of the same but this use expressly excludes (unless otherwise agreed in writing with the Client) any right to use the Work, or any derivative of it, in any form or medium other than that set out in the Brief.
4.4 For clarity the Company retains all Intellectual Property Rights, and will not grant a licence, or be deemed to have granted a licence, in respect of any concepts, designs or otherwise created pursuant to the Brief but not utilised in the Work.
4.5 Nothing in this Agreement shall be so construed as to require the Company to assign to the Client any rights whatsoever in relation to such ideas, know-how, methodologies, technology, expertise and techniques developed by the Company whether prior to or in the course of the performance of this Agreement or which together constitute the expertise which the Company brings to bear on the performance of its obligations under this Agreement.
4.6 The Client shall advise the Company of the quotation or inclusion in the Work of any textual or illustrative material from any source other than itself and the Client shall ensure that written permission has been secured from and fees paid to the copyright holders for the inclusion of such material. The Client will advise if appropriate acknowledgement is needed in the Work, and the Company shall include such acknowledgement in the Work.
5.1 Emotio acknowledges that, during the course of this Agreement it will be entrusted with, and further develop, confidential information relating to the business of the Customer. Emotio agrees that it will not use such confidential information for any purpose except the performance of this Agreement and that it will not disclose any such confidential information to any person unless such disclosure is authorised by the other party in writing.
5.2 The foregoing obligation of confidentiality will not apply to information that: (i) is or becomes generally known or available by publication or otherwise through no fault of the Company: (ii) is known by the Company prior to the time of disclosure and is not subject to restriction; (iii) is independently developed or learned by the Company pursuant to this Agreement; (iv) is lawfully obtained from a third party, including end-user customers, who have the right to make such disclosure without restriction; or (v) is released for publication by the Customer in writing.
5.3 Emotio may disclose the Customer’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising Emotio’s rights or carrying out its obligations under or in connection with this agreement; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
5.4 Emotio shall not be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
6. Warranties and Indemnities
6.1 Emotio hereby warrants to the Customer that:
6.1.1 Emotio has the right and power to enter into this Agreement;
6.1.2 Emotio is experienced in producing the work as set out in the proposal and that it will perform the services under the Agreement in a good and workmanlike manner and in accordance with the Proposal. Emotio does not warrant any particular results will be achieved by the services provided. Where Emotio indicates specific targets in the agreement Emotio does not guarantee or warrant that these will be achieved but will use its reasonable endeavours to do so.
6.1.3 Save for any copy supplied by the Customer or the Customer’s contributors Emotio’s part in the Work will not knowingly give rise to a violation of any existing copyright or a breach of any existing agreement;
6.1.4 Save for any copy supplied by the Customer or the Customer’s contributors Emotio’s part in the Work will contain nothing obscene, defamatory or libellous and all statements contained therein purporting to be facts will be true.
6.2 The Customer hereby warrants to Emotio that:
6.2.1 The Customer has the right and power to enter into this Agreement;
6.2.2 The Customer’s part in the Work will in no way give rise to a violation of any existing copyright or a breach of any existing agreement;
6.2.3 The Customer’s part in the Work will contain nothing obscene, defamatory or libellous and all statements contained therein purporting to be facts will be true.
6.3 The Customer will indemnify Emotio or its agents against any loss, injury or damage (including any legal costs or expenses and any compensation costs or disbursements paid by Emotio or its agents on the advice of Emotio’s legal advisers to compromise or settle any claim arising out of any breach or alleged breach of the foregoing warranties by the Customer.
6.4 The Customer shall indemnify Emotio 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 the beneficiary of the indemnity arising out of or in connection with the indemnifier’s website, (being the Customer Website or the marketing or sale of products or services on that website, or the marketing or sale of products or services in social media or marketing activity provided that:
(a) the customer is given prompt notice of any such claim;
(b) Emotio provides reasonable co-operation to the indemnifier in the defence and settlement of such claim, at the beneficiary’s expense; and
(c) the indemnifier is given sole authority to defend or settle the claim.
6.5 The foregoing warranties and indemnity shall survive the termination of this Agreement.
6.6 Disclaimer. Save in respect of the warranties contained in clause 6 the foregoing are the only warranties made by either party. Both parties specifically disclaim all other warranties, express or implied.
7. Limitation of Liability
7.1 This Clause 7 sets out the entire financial liability of Emotio (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
(a) arising under or in connection with this agreement; and
(b) in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
7.2 Except as expressly and specifically provided in this agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.
7.3 Nothing in this agreement excludes the liability of Emotio:
(a) for death or personal injury caused by Emotio’s negligence; or
(b) for fraud or fraudulent misrepresentation.
Subject to Clause 7:
(a) Emotio shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill, damage to reputation and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this agreement; and
(b) Emotio’s total aggregate liability in tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to £250,000 or the amount paid under this agreement to Emotio by the customer during the 12 months preceding the date on which the claim arose whichever is the lesser.
8. Payment by the Customer
The Customer shall pay Emotio for the services to be performed under this Agreement as follows:
8.1 As set out in the Proposal plus VAT, or where not specified within 14 days of the relevant invoice.
8.2 In the event that the Work is not completed within three months of the effective date, other than for default by Emotio, then Emotio reserves the right to submit invoices for any work done to cover all costs and other items as the relevant proportion of its fee and such invoices must be paid within 14 days of the date thereof. These sums are in addition to any invoice rendered under Clause 3.4 above.
8.3 The balance of the sum set out in the Proposal plus VAT to be paid on the delivery of the Work to the Customer or where not specified within 14 days.
8.4 In respect of any printing or photographic work an advance is payable on receipt of order prior to work being carried out, any balance to be paid on delivery of all printed material.
8.5 Emotio reserves the right, on giving reasonable notice (not being less than 30 days) to the Customer, to increase the price of the services and the Goods pursuant thereto to reflect any increase in the cost to Emotio which is due to any factor beyond the control of Emotio (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture, printing or paper), any change in delivery dates, quantities or specifications for the Goods which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give Emotio adequate information, instructions, or copy for insertion.
8.6 Except as otherwise stated in the Proposal or any agreed variation of the Proposal, all prices given by Emotio are on an ex works basis, and where Emotio agrees to deliver the Goods otherwise than at the Customer’s premises as referred to, the Customer shall be liable to pay Emotio’s charges for transport, packaging and insurance.
8.7 The price is exclusive of any applicable value added tax or other relevant sales tax, which the Customer shall be additionally liable to pay to Emotio.
8.8 Emotio shall be entitled to recover the price, notwithstanding that delivery may have taken place late due to the customer fault in respect of the same. The time of payment of the price shall be of the essence of the Contract and any relaxation of that obligation shall be at the discretion of Emotio. Receipts for payment will be issued only upon request.
8.9 If the Customer fails to make any payment on or before the due date then, without prejudice to any other right or remedy available to Emotio, Emotio shall be entitled to:
8.9.1 cancel the Agreement or suspend any further deliveries or services to the Customer, this can also include the suspension of the Customer’s website and Emotio is authorised to instruct the webhost provider accordingly;
8.9.2 appropriate any payment made by the Customer to such of the Goods as Emotio may think fit (notwithstanding any purported appropriation by the Customer); and
8.9.3 charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of 4 per cent per annum above Barclays Bank Plc base rate, from time to time, compounded quarterly, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
8.9.4 if final payment is not received within 30 days of a website being put live the site will be taken offline.
9.1 Where the works are to be delivered in instalments (and for the purposes of this Agreement each delivery in respect of any element of the Work shall be deemed to be an instalment), each delivery shall constitute a separate obligation and failure by Emotio to deliver any one or more of the instalments in accordance with these terms and conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Agreement as a whole as repudiated.
10. Risk and Property
Risk of damage to or loss of the works shall pass to the Customer at the time of delivery or, if the Customer wrongfully fails to take delivery of the works, the time when Emotio or its agents has tendered delivery of the works.
11. Duration and Termination
11.1 This agreement shall commence on the Effective Date and shall continue for the period set out in the proposal, unless otherwise terminated as provided in this Clause 11. If the agreement is for a fixed period then it will automatically renew for monthly periods upon expiry of the fixed period, unless either party notifies the other, in writing, at least 30 days before the end of the then current term.
11.2 1 If both parties agree in writing to the other this Agreement may be terminated on the expiry of one month’s notice served in accordance with these terms. If the Customer serves notice to terminate an agreement which is for a fixed period and that notice expires before the end of the fixed period then Emotio will invoice the customer and the customer will be liable for all sums due to Emotio under the agreement from the end of the notice to the expiry of the fixed term.
11.3 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:
(a the other party commits a material breach of any term of this agreement which breach is irremediable or (if such a 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 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 or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(c) 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];
(d) 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);
(e) 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);
(f) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(g) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(h) 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 the other party’s assets and such attachment or process is not discharged within 14 days;
(i) 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 any of its creditors [other than (being 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;
(j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(k) there is a change of control of the other party within the meaning of section 1124 of the Corporation Tax Act 2010; or
(l) 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 11.3(b) to Clause 11.3(k) (inclusive).
(n) Save in respect of an event of force majeure, if the Customer or Emotio is in material breach of any of the provisions of this Agreement and has failed to remedy such breach within 21 days of notice in writing to them from the other of such breach.
11.4 Upon termination of this Agreement under Clause 11.1, 11.2 or 11.3hereof, all rights of the Customer in the Customer Content shall revert to the Customer but any licence granted by Emotio in the Work shall, if any sums remain outstanding, revert to Emotio without prejudice to any claim which Emotio may have for monies due and/or damages and/or otherwise.
11.5 Nothing herein before contained shall prejudice any claim or demand which any party hereto may have against the other under the provisions hereof or in respect of any antecedent breach of such provision or by reason of the determination of this agreement.
11.6 If the Customer for any reason terminates this Agreement under 11.1-11.3 then Emotio reserves the right to charge for work completed as of the date of such termination, including pro-rated fees and expenses for items partially complete at time of termination, such invoices to be paid within 7 days of the date of the invoice. If the Customer fails to make payment on or before the due date, then without prejudice to any other right or remedy available to Emotio, Emotio shall be entitled to the benefit of Clause 8.9.3 of this Agreement. Upon receipt of all sums due to Emotio, Emotio will deliver to the Customer copies of the work on any specific matter completed to that date. Intellectual Property Rights in this uncompleted work will be dealt with, on full payment of sums owing, as per Clause 4 of this Agreement.
12. Consequences of termination
12.1 On termination of this agreement for any reason:
(a) all licences and benefits granted under this agreement shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party; and
(c) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
13. Data Protection
13.1 Both parties will comply with all applicable requirements of the Data Protection Legislation.
13.2 the Customer will provide appropriate safeguards in relation to data that it supplies to Emotio to ensure that it cannot be unlawfully accessed by third parties;
13.3 The Customer consents to Emotio appointing any third party processor of Personal Data under this agreement including outside the EU provided such third party processor gives evidence to Emotio that it has appropriate safeguards to ensure data cannot be unlawfully accessed.
14. Force Majeure
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for six months, the party not affected may terminate this agreement by giving 30 days’ written notice to the affected party.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16. Rights and Remedies
The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
17.1 If any provision or part-provision of this agreement 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 agreement.
17.2 If one party gives notice to the other of the possibility that any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
18. Entire Agreement
18.1 This agreement 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.
18.2 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 agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this agreement.
18.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this agreement.
18.4 Nothing in this clause shall limit or exclude any liability for fraud.
19. Assignment and other dealings
19.1 The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this agreement without the prior written consent of Emotio.
19.2 Emotio may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement.
20. No Partnership or Agency
Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
22. Third party rights
A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
23.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the address [email protected] for notices served on Emotio and the email address provided by the customer on the signing of the proposal.
Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) 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 or at the time recorded by the delivery service; or
(c) if sent by email], at 9.00 am on the next Business Day after transmission.
(d) A notice given under this agreement is not valid if sent by email.
24. Governing Law
This agreement 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.
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 agreement or its subject matter or formation.