Terms and Conditions
(1) Sharp Ahead Limited incorporated and registered in England and Wales with company number 08971343 whose registered office is at Duke Studio, 3 Sheaf Street, Leeds, LS10 1HD
(A) Supplier is a provider of marketing services; and
(B) The Customer wishes the Supplier to provide certain Services in accordance with this Agreement.
- Definitions and Interpretation
1.1 In this Agreement the following words and phrases shall have the following meanings:
Acceptance – the acceptance by the Customer of the relevant Deliverable in accordance with clause 4 and Accept and Accepted shall be construed accordingly;
Agreement – this Agreement and its Schedule(s) and any other document incorporated by reference which is signed by the authorised representatives of the Parties and attached to it;
Business Day – between the hours of 0900 and 1730 on any day (other than a Saturday or Sunday) on which the clearing banks are open for normal banking business in England;
Fees – charges payable for the Deliverables as set out in the SOW;
Completion Date(s) – dates set for the delivery and/or provision of Deliverables in the SOW, or as otherwise agreed by the Parties;
Confidential Information – this Agreement and all information disclosed by one party to the other or otherwise received by the other in the negotiation, entering into and performance of this Agreement, which is expressly marked as confidential or which concerns the technology, know how, methodology of supply, business, developments and finances of that party and any of its affiliates or of the suppliers, customers or clients of that party;
Deliverables – all products, materials and activities associated with the provision of Goods, Services, and/or Software (as the context requires) as more particularly described in the SOW;
Documentation – documentation, if any, required for the proper use of the Deliverables;
Fees – charges payable for the Deliverables as set out in the SOW;
Force Majeure – an event being one or more of the following: riot; civil unrest, military action, terrorism, earthquake, storm, flood, inability to obtain supplies of power, fuel, or transport; exercise of emergency powers by any governmental authority;
Intellectual Property Rights or IPRs – all patents, trademarks, trade or business names, design rights, copyright, database rights, know-how and domain names (whether or not any of these is registered and including all applications for registration of any of them) and all other rights of a similar nature or having equivalent or similar effect to any of those which may subsist anywhere in the world;
Relevant Representative – the representatives for the Customer and Supplier respectively whose name, address, fax and telephone number are set out in the SOW and as amended in accordance with Clause 22;
Parties – the Customer and the Supplier and Party shall mean either of them as the case may be;
Services – the services to be provided under this Agreement;
Software – the software to be licensed under this Agreement;
Specifications – the description or specification of the Deliverables as set out in the SOW;
Statement of Works or SOW – the document which is set out in the Schedule headed with that
Supplier Personnel – any person used by Supplier to perform its obligations under this Agreement.
1.2 Headings do not affect the interpretation of this Agreement.
1.3 A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.4 Words in the singular include the plural and in the plural include the singular.
- Incorporation of terms and order of precedence
2.1 This Agreement (including the Schedules) shall govern the provision of any Deliverables as set out in the SOW by Supplier.
- Obligations of supplier
3.1 Supplier agrees to provide the Deliverables.
3.2 Supplier shall provide the Deliverables with all reasonable skill care and diligence as may reasonably be expected of appropriately qualified and experienced supplier of equivalent good, services or software and with appropriate skill and experience of providing goods, services or software of a similar scope, type, nature and complexity to the Deliverables.
3.3 Where applicable the Deliverables will conform with the quality, description and other particulars of the Deliverables stated in the SOW.
3.4 Supplier shall use all reasonable endeavours to provide the Deliverables in accordance with the timetable set out in the SOW.
3.5 Supplier shall provide the Customer with regular updates on the progress of the Deliverables.
Such updates shall be in a form agreed between the Parties.
3.6 Supplier shall not utilise the Customer logos, get-ups or trademarks without the Customer’ prior written consent
- Obligations of the customer
4.1 The Customer shall where appropriate and to the extent reasonably available provide all reasonable facilities and assistance (including use and access to its and any third party’s Intellectual Property Rights) necessary to enable Supplier to provide the Deliverables.
4.2 The Customer shall ensure that Supplier is provided with full necessary access to such locations within the Customer’ premises as Supplier may reasonably require.
4.3 The Customer shall provide Supplier with relevant information concerning the Customer’ operations and activities to the extent reasonably required to enable Supplier to provide the
4.4 The Customer shall Accept each Deliverable or give written reasons for the rejection of such:
Deliverable within 5 Business Days of the delivery by the Supplier and the Customer shall be deemed to have Accepted such Deliverable on the 6th Business Day after delivery.
- Changes in requirements
5.1 If the Customer requests a change to the Specifications of the Deliverables:
(a) The Supplier shall, within a reasonable time (and in any event not more than 10 Business Days after receipt of the Customer’ request), but without further charge to the Customer, provide a written estimate to the Customer of:
(i) the likely time required to implement the change;
(ii) any necessary variations to the Fees as a result of the change;
(iii) the likely effect of the change on the Specifications; and
(iv) any other impact of the change on the terms of this Agreement;
(b) if the Customer wishes Supplier to proceed with the change, Supplier shall do so after agreement on the necessary variations to the Specifications (including where necessary to the Fees and Completion Date) and any other relevant terms of this Agreement to take account of the change in accordance with this clause.
- The customer policies
6.1 In providing Deliverables, Supplier shall use all reasonable endeavours to observe the Customer Policies in all respects.
6.2 If so required by the Customer, Supplier will demonstrate to the Customer’ reasonable satisfaction that it has complied with the requirements of the Customer Policies.
- Charges and payment terms
7.1 In consideration of the Deliverables provided by Supplier under this Agreement, the Customer shall pay Supplier the Fees as specified in the SOW.
7.2 Except as expressly stated herein, all Fees are exclusive of VAT (if any).
7.3 The Supplier shall submit invoices at each stage as set out in the SOW. Each invoice shall contain the particulars required by statute in respect of VAT and shall be sent to the address specifed in the
SOW. Upon termination of this Agreement the Supplier shall submit any final invoice(s) relating to the remaining Deliverables as set out in the SOW.
7.4 Payment of a correct invoice submitted in accordance with this clause shall be made by the Customer within 30 Business Days from the date of receipt. The Supplier reserves the right not to progress any other stage as set out in the SOW and/or suspend all Services if any invoice has not been paid. If either party fails to pay any undisputed amount due on time, the other party shall be entitled to charge and receive interest at a rate of 6% per annum above the base lending rate from time to time of National Westminster Bank (NatWest) such interest shall accrue from the due date until the date of payment and shall be calculated on a daily basis.
7.5 If the Customer continues to make payments of invoices submitted by Sharp Ahead Limited for the relevant SOW but the Customer does not require Deliverables to be delivered by Sharp Ahead Limited in any particular month, then after a period of three consecutive months of no delivery, a 2.5% per month non-utilisation fee will be applied to all amounts held by Sharp Ahead Limited so that the amounts held by Sharp Ahead Limited shall be reduced accordingly for each month in which such fees apply and the deduction recognised as revenue by Sharp Ahead Limited.
8.1 If either Party commits a material or continuing breach of any of its obligations under this Agreement, written notice of such a breach should be given to that Party and if such a breach is not rectified within 20 Business Days, the Agreement shall be terminated by written notice.
8.2 This Agreement may be terminated by either Party if any of the following events (or any event analogous to any of the following occurs in a jurisdiction other than England and Wales) occurs in respect of the other Party:
(a) a proposal is made for a voluntary arrangement within Part I of the Insolvency Act 1986 or of any other composition scheme or arrangement with, or for the assignment for the benefit of, its creditors;
(b) a petition is presented for its winding up (which is not dismissed within fourteen (14)
Business Days of its service) or for the making of an administration order, or an application is made for the appointment of a provisional liquidator or a creditor’s meeting is convened pursuant to s.98 of Insolvency Act 1986;
(c) a receiver, administrative receiver or similar officer is appointed over the whole or any part of its business or assets; or(d) it is or becomes insolvent within the meaning of s.123 Insolvency
8.3 If this Agreement is terminated for any reason:
(a) any sums due to the Customer or the Supplier shall become immediately payable without set-off or deduction;
(b) Supplier shall immediately return to the Customer all tangible property and Confidential Information belonging to the Customer in its possession, custody or control and the Customer shall return to Supplier all of its tangible property and Confidential Information in its possession, custody or control;
(c) Supplier shall immediately deliver to the Customer all specifications, programmes (including source codes) and any Documentation comprised in the Deliverables and existing at the date of such termination, whether or not complete. All Customer IPRs in such materials in such materials shall remain with the Customer;
(d) each Party will cease use of the other Party’s Confidential Information and IPRs; and
(e) each Party will, at its sole option, either return or destroy all records, documentation, data, and any other information and all copies thereof which are owned by or licensed to the other Party, and on the other Party’s request, a director of the returning/destroying Party shall certify in writing that the Party has complied with this clause.
8.4 Termination will not prejudice or affect any right of action or remedy already accrued to either Party.
8.5 Notwithstanding any termination of this Agreement the provisions which by their nature are intended to survive such termination will remain in full force and effect including without limitation the obligations of confidentiality.
- Intellectual Property Rights
9.1 All Intellectual Property Rights in or arising out of or in connection with the Deliverables (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier until the Customer has paid all invoices as set out in the SOW.
9.2 Until all invoices are paid the Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and licence during the term of the Agreement to use the IPRs in the Deliverables but that licence shall terminate when this Agreement terminates and/or if any invoices are not paid by the relevant due date.
9.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in this clause.
9.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Agreement for the purpose of providing the Deliverables and any other services to the Customer.
10.1 Supplier shall at its own expense have in force for as long as Supplier shall maintain a policy of Professional Indemnity Insurance with a limit of indemnity of £1,000,000 for any one claim arising out of any one incident or event and without limit as to the number of claims during the period of insurance.
10.2 Supplier shall at its own expense have in force for as long as Supplier shall maintain a policy of insurance in respect of public and products liabilities with a limit of indemnity of £2,000,000 for any one claim arising out of any one incident or event and without limit as to the number of claims during the period of insurance.
10.3 Such insurance policies shall be maintained with reputable insurance companies, and if requested by the Customer evidence of such policies being in effect and of the payment of relevant insurance policy premiums shall be submitted to the Customer for its inspection.
11.1 Notwithstanding any other provisions of this Agreement neither party excludes or limits its liability for death or personal injury caused by its negligence or for fraud or in respect of any other liability arising out of or in connection with this Agreement which cannot be excluded or restricted by law.
11.2 Neither Party shall be liable to the other in respect of any:
(a) loss of revenue,
(b) loss profits or business or contracts,
(c) loss of anticipated savings,
(d) loss of use or corruption of software, data or information,
(e) loss of damage to goodwill; and/or
(f) any indirect or consequential loss, irrespective of whether such loss was foreseeable or whether the Party has been advised of the possibility that such loss may be incurred.
11.3 Except in relation to liability governed by clauses 11.1 to 11.2, each Party’s total liability to the other (whether in contract, tort (including negligence), breach of statutory duty or otherwise) arising out of or in connection with this Agreement shall not exceed the greater of either:-
(a) the level of the amount of any insurance proceeds received by the Party in default which cover the liability in question proven to be caused by the Party in default to the innocent Party; or
(b) the total Fees paid by the Customer under this Agreement in the preceding 12 months immediately prior to the written notification of the claim.
- Confidentiality and publicity
12.1 Each Party shall, during the term of this Agreement and thereafter, keep confidential, and shall not use for its own purposes, nor without the prior written consent of the other disclose to any third party, any and all Confidential Information, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party.
12.2 Neither Party shall make any announcement relating to this Agreement or its subject matter without the prior written approval of the other Party except as required by law or regulatory authority.
- Data protection
13.1 Each Party will duly observe all their obligations under any applicable data protection regulation that may apply to the relationship contemplated under this Agreement and in particular the EU General Data Protection Regulation and the UK Data Protection Act 2018 on the protection of personal data The Supplier’s privacy notice is available at sharpahead.com.
- Force majeure
14.1 If either Party is prevented or delayed in the performance of any of its obligations under this Agreement by Force Majeure, that Party shall immediately serve notice in writing on the other Party specifying the nature and extent of the circumstances giving rise to Force Majeure, the obligations on its part which are affected and its reasonable estimate of the period for which such failure or delay will continue.
14.2 Subject to the service of the notice in accordance with Clause 22 and the remaining provisions of this Clause 13, to the extent that either Party is prevented from performing its obligations under this Agreement by Force Majeure beyond such Party’s reasonable control, such Party’s obligation to perform its obligations under this Agreement will (during the continuation of the Force Majeure) be read and construed as an obligation to perform such obligations to the best level reasonably achievable in the circumstances.
14.3 A Party claiming to be affected by Force Majeure shall take all reasonable steps to prevent, avoid, overcome and mitigate the effects of such Force Majeure.
14.4 If a Party (the first Party) is prevented from performing its obligations under this Agreement by a Force Majeure which continues for more than 20 Business Days then the other Party will be entitled to terminate that Agreement without liability to the first Party forthwith on giving written notice of termination to the first Party.
- Entire agreement
15.1 This Agreement, the schedules and the documents annexed to it and referred to in it contain the whole agreement between the parties relating to the subject matter hereof, and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
15.2 Each party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement but nothing in this clause shall limit or exclude any liability for fraud.
No variation or alteration to this Agreement shall be effected unless in writing and signed by the Customer and Supplier and expressly identified as a variation or alteration of this Agreement.
If any of the provisions of this Agreement is judged to be invalid, illegal or unenforceable, the continuation in full force and effect of the remainder of this Agreement will not be prejudiced but such provision will be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the Parties will be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the Parties as set out herein.
No forbearance or delay by either Party in enforcing its respective rights will prejudice or restrict the rights of that Party, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.
- Relationship of the parties
The relationship between the Customer and Supplier is that of purchaser and supplier. Nothing in this Agreement is intended to create a partnership or joint venture of any kind between the Parties, or to authorise either Party to act as agent for the other. Save where expressly so stated in this Agreement neither Party will have authority to act in the name of or on behalf of or otherwise to bind the other.
- Assignment and subcontracting
20.1 Supplier shall not assign, transfer, change or deal in any other manner with this Agreement nor any rights or obligations under it or purport to do any of the same, nor sub-contract any of its obligations under this Agreement to any third party without the prior written consent of the Customer, such consent not to be unreasonably withheld or delayed.
20.2 The Customer may at any time assign, transfer, charge, mortgage, subcontract, or deal in any other manner with all or any of its rights or obligations under this Agreement.
- Third party rights
Unless specified otherwise in this Agreement a person who is not a Party to this Agreement shall not have any rights under or in connection with it. The Agreements (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
22.1 Any notice or other communication given under this Agreement shall be in writing and shall be served by delivering it personally or sending it by first class post (or by airmail if overseas) to the address and for the attention of the Relevant Representative.
22.2 Unless there is evidence of earlier delivery a notice or other communication shall be deemed given:
(a) if delivered personally, when left at the address of the Relevant Representative; and
(b) if sent by first class post, two Business Days after the date of posting or if sent by airmail, five Business Days after the date of posting.
22.3 In proving service by post, is shall be sufficient to prove that the envelope containing the notice was correctly addressed, postage paid and posted.
22.4 Any alteration of the details of the Relevant Representative shall be notified to the other Party in accordance with this Clause 22 but shall not take effect until five Business Days after the notice of the alteration has been give.
Supplier shall provide the Customer with all information required in order to enable the Customer to understand and operate the Deliverables (including, but not limited to installation, commissioning, operation and maintenance). The Customer shall have the right to copy, reproduce and generally use the Documentation for the Customer business purposes and the implementation and operation of the Deliverables. The right to copy, reproduce and use the Documentation shall also extend to the Customer third party suppliers provided that such use is required for the purposes of providing services to the Customer or the Customer customers.
- Governing law and jurisdiction
This Agreement shall be governed by and interpreted in accordance with English Law and the Parties submit to the non-exclusive jurisdiction of the Courts of England and Wales.
- Dispute resolution
25.1 Any dispute or difference between the Parties in connection with this Agreement (including in relation to any breach of the dispute resolution process) shall be escalated in the first instance to the Relevant Representatives of each party who will use all reasonable endeavours to resolve the dispute.
25.2 If the Parties have not been able to resolve the dispute within 10 Business Days of reference to the Relevant Representatives, the dispute shall be referred to managers of the Relevant Representatives (the ‘Managers’) who will use all reasonable endeavours to resolve the dispute.
25.3 If the Parties have not been able to resolve the dispute within 5 Business Days of reference to the Managers the dispute shall be escalated to the Courts of England and Wales.
- Compliance with laws
In performing its obligations under this Agreement, Supplier shall comply with all applicable laws, rules and regulations of governmental entities, including any health and safety legislation and environmental legislation, having jurisdiction over such performance.
- Survival of provisions