The Client's attention is drawn in particular to the provisions of Condition 12.
Nothing in these Conditions affects the statutory rights of any consumer.
1. Definitions and Interpretation
1.1 In these Conditions, the following words and expressions shall, unless the context otherwise requires, have the following meanings:
all and any documents, products and materials owned by or licensed to the Designer prior to the commencement of the Contract;
a day (other than a Saturday, Sunday or public holiday in the United Kingdom) when banks in London are open for business;
the contract between the Designer and the Client for the supply of the Products and/or Services which consists of the Project Proposal and/or the Furniture Pack and these Conditions;
the natural person, corporate or unincorporated body (whether or not having a separate legal personality) named in the Project Proposal for whom the Products and/or Services are to be supplied;
all documents, samples and materials (other than the Products) developed by the Supplier or its agents, contractors or employees as part of or in relation to the Services and/or the Products in any form or media including drawings, plans, diagrams, sample boards, product samples, designs, pictures and specifications;
the terms and conditions of business set out in this document as amended from time to time in accordance with Condition 2.5;
Dandy Designs Limited (No. 7691493) whose registered office is at 39 Guildford Road, Lightwater, Surrey, GU18 5SA;
has the meaning given in Condition 8.1(h);
the Service Fees and the Product Fees;
has the meaning given in Condition 13.2;
the document issued by the Designer to the Client which contains, inter alia, details of the Products and the Product Fees;
all and any documents, products and materials provided by the Client relating to the Products and/or Services;
'Intellectual Property Rights'
patents, trade and service marks, registered designs, internet domain names, improvements and modifications to any of the foregoing and the right to apply for protection for such registered rights anywhere in the world; inventions, discoveries, copyright, design rights, rights in computer software, database rights, unregistered trade and service marks, brand names, trade secrets and confidential information, know-how; and any other intellectual property and any similar or equivalent rights whether registrable or not arising or granted or subsisting under the law of any other country or state;
the furniture and other products (or any part of them) to be supplied by the Designer to the Client as specified in the Project Proposal and as more particularly described in the Furniture Pack;
the fees payable by the Client to the Designer for the Products as specified in the Furniture Pack (as increased pursuant to Condition 7.5);
the document issued by the Designer to the Client which sets out, inter alia, details of the Services and the Service Fees;
the services to be supplied by the Designer to the Client as specified in the Project Proposal
the fees payable by the Client to the Designer for the Services as specified in the Project Proposal (as increased pursuant to Condition 7.5).
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation or construction.
1.3 In these Conditions
(a) a reference to any statute or statutory provision shall be construed as a reference to any statutory amendment, re-enactment or extension thereof and includes any subordinate legislation made under that statute or statutory provisions as amended, re-enacted or extended;
(b) unless the context otherwise requires, words denoting the singular shall include the plural and vice versa and the masculine gender shall include the feminine and the neuter;
(c) a reference to a party includes its personal representatives, successors and permitted assigns; and
(d) 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.
2. Basis of Contract
2.1 The Project Proposal constitutes an offer by the Designer to the Client to supply the Products and/or the Services in accordance with these Conditions. It is valid for a period of 21 days from the date of issue unless withdrawn earlier by the Designer giving written notice thereof to the Client.
2.2 There shall be no agreement binding upon the Designer until the Designer has received a signed copy of the Project Proposal or written confirmation of acceptance of the Project Proposal by the Client.
2.3 Any descriptions or illustrations contained in the Designer's catalogues or brochures or on its website are issued or published for the sole purpose of giving an approximate idea of the products and/or services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 No variation to the Contract, including the introduction of any additional terms and conditions, shall be binding unless agreed in writing by the Designer.
2.6 All of these Conditions shall apply to the supply of both the Products and Services except where the application to one or the other is specified.
3.1 To the extent that the Products are to be manufactured or any process is to be applied to the Products in accordance with a specification supplied by the Client, the Client shall indemnify the Designer against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Designer in connection with any claim made against the Designer for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with the Designer's use of such specification. This Condition 3.1 shall survive termination of the Contract.
3.2 The Designer reserves the right to amend the specification of the Products if required by any applicable statutory or regulatory requirements.
4.1 Delivery of the Products shall be made by the Customer collecting the Products at the Designer's premises within three Business Days of the Designer notifying the Client that the Products are ready for collection or, if some other place for delivery is specified in the Project Proposal or the Furniture Pack, by the Designer delivering the Products to that place at any time after the Designer notifies the Client that the Products are ready for delivery.
4.2 Any dates quoted for delivery are approximate only, and the time of delivery of the Products is not of the essence of the Contract. The Designer shall not be liable for any delay in delivery of the Products that is caused by:
(a) an event of Force Majeure;
(b) any delay in payment of, or failure to pay, the Product Fees in accordance with Condition 7.2; or
(c) the Client's failure to provide the Designer with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.3 If the Designer fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Client in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Products. The Designer shall have no liability for any failure to deliver the Products to the extent that such failure is caused by:
(a) an event of Force Majeure;
(b) any delay in payment of, or failure to pay, the Product Fees in accordance with Condition 7.2; or
(c) the Client's failure to provide the Designer with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.4 If the Client fails to take or accept delivery of the Products within three Business Days of the Designer notifying the Client that the Products are ready then, except where such failure or delay is caused by an event of Force Majeure or the Designer's failure to comply with its obligations under the Contract:
(a) delivery of the Products shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Designer notified the Client that the Products were ready; and
(b) the Designer shall store the Products until delivery takes place, and charge the Client for all related costs and expenses (including insurance).
4.5 If ten Business Days after the Designer notified the Client that the Products were ready for delivery the Client has not taken or accepted delivery of them, the Designer may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, account to the Client for any excess over the price of the Products or charge the Client for any shortfall below the price of the Products.
4.6 The Designer may deliver the Products by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Client to cancel any other instalment.
5. Title and Risk
5.1 The risk in the Products shall pass to the Client on completion of delivery.
5.2 Title to the Products shall not pass to the Client until the Designer has received payment in full (in cash or cleared funds) for:
(a) the Products; and
(b) any other goods or services that the Designer has supplied to the Client in respect of which payment has become due.
5.3 Until title to the Products has passed to the Client, the Client shall:
(a) hold the Products on a fiduciary basis as the Designer's bailee;
(b) maintain the Products in a satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(c) notify the Designer immediately if it becomes subject to any of the events listed in Conditions 15.2(d) to 15.2(n) (inclusive); and
(d) give the Designer such information relating to the Products as the Designer may require from time to time.
5.4 If before title to the Products passes to the Client the Client becomes subject to any of the events listed in Conditions 15.2(d) to 15.2(n) (inclusive), or the Designer reasonably believes that any such event is about to happen and notifies the Client accordingly then, provided that the Products have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Designer may have, the Designer may at any time require the Client to deliver up the Products and, if the Client fails to do so promptly, the Designer or its agents may enter any premises of the Client or of any third party where the Products are stored in order to recover them.
6. Supply of the Services
6.1 The Designer shall provide the Services to the Client in accordance with the Project Proposal in all material respects.
6.2 The Designer may at any time and from time to time upon giving written notice thereof to the Client make such changes to the Services:
(a) as are reasonably necessary to comply with any applicable statutory, regulatory or safety requirements; or
(b) which do not materially affect their nature or quality.
6.3 The Designer shall use reasonable endeavours to meet any dates quoted in the Project Proposal for the performance of the Services, but such dates are approximate only and the Designer shall not be liable for any delay in performing the Services howsoever caused. Time for the performance of the Services shall not be of the essence of the Contract.
7. Fees and Payment Terms
7.1 The Client shall pay the Service Fees in cash or cleared funds on the dates specified in the Project Proposal.
7.2 The Client shall pay the Product Fees in cash or cleared funds in advance of delivery of the Products.
7.3 Time of payment is of the essence of the Contract.
7.4 The Designer shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom the Designer engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Designer for the performance of the Services, and for the cost of any materials.
7.5 The Designer reserves the right to increase the Fees, by giving notice to the Client at any time before delivery, in the case of Products, and at any time before the date of the Designer's final invoice for the Fees, in respect of Services, to reflect any increase in the cost of the Products and/or Services to the Designer that is due to:
(a) any factor beyond the control of the Designer (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Client to change the delivery date(s), quantities or types of Products and/or Services ordered, or the specification of the Products and/or Services; or
(c) any delay caused by any instructions of the Client in respect of the Products and/or Services or failure of the Client to give the Designer adequate or accurate information or instructions in respect of the Products and/or Services.
7.6 The Product Fees are inclusive of all costs and charges of packaging, insurance and delivery of the Products.
7.7 The Fees and all other charges payable by the Client hereunder are exclusive of any Value Added Tax and any sales or other tax from time to time prescribed by law for which the Client shall be additionally liable at the applicable rate from time to time.
7.8 All sums due to the Designer under the Contract shall be paid in full without deduction or withholding other than as required by law and the Client shall not assert any set-off or counterclaim against the Designer (whether on the grounds of breach of contract on the part of the Designer or otherwise) in order to justify withholding payment of any such amount in whole or in part. No payment shall be considered made by the Client until cleared funds have been received by the Designer. Receipts for payment will be issued only upon request.
7.9 If the Client fails to make any payment within seven days of the due date then, without prejudice to any other right or remedy available to the Designer, the Designer shall be entitled to:
(a) terminate the Contract forthwith or suspend the provision of any further Services to the Client;
(b) appropriate any payment made by the Client to such of the Products and/or Services (or the products and/or services supplied under any other agreement between the Client and the Designer) as the Designer may think fit;
(c) charge the Client a late payment fee of £25 plus VAT; and
(d) charge the Client interest (both before and after any judgement) on the amount unpaid at the rate of 3 per cent per annum above the base rate from time to time of HSBC Bank plc from the due date until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
8. Obligations of the Client
8.1 The Client shall:
(a) ensure that the Products and/or the Services are suitable for its requirements;
(b) cooperate promptly with the Designer in all matters relating to the Products and/or Services;
(c) provide in a timely manner such information and materials as the Designer shall require to enable it to supply the Products and/or Services and shall ensure that such information is accurate in all material respects;
(d) make available appropriate personnel to liaise with the Designer;
(e) provide the Designer, its employees, agents, consultants and subcontractors, with access to the Client's premises, office accommodation and other facilities, including utilities, as reasonably required by the Designer to supply the Products and/or Services;
(f) prepare the Client's premises for the supply of the Products and/or Services;
(g) maintain any rented goods supplied by the Designer in a satisfactory condition and keep them insured against all risks for their full value from the date of delivery;
(h) keep and maintain all materials, equipment, documents and other property of the Designer ('Designer Materials') at the Client's premises in safe custody at its own risk, maintain the Designer Materials in good condition until returned to the Designer, and not dispose of or use the Designer Materials other than in accordance with the Designer's written instructions or authorisation.
8.2 The Client hereby acknowledges and agrees that any failure by the Client to perform any of the obligations set out in Condition 8.1 may prohibit effective action by the Designer and render the Designer unable to supply the Products and/or Services and that, in such circumstances:
(a) the Designer shall be under no liability to perform its obligations under the Contract to the extent that such performance is prohibited by such failure of the Client; and
(b) if the Client fails to perform any of such obligations for a period of 14 days or more, the Designer shall be entitled to terminate the Contract.
9.1 At any time prior to the completion of the supply of the Products and/or Services, the Designer may recommend to the Client and the Client may request from the Designer changes to be made to the Products and/or Services.
9.2 The Designer will notify the Client in writing within five Business Days of receipt of a change request from the Client or the making of a change recommendation to the Client of the time and cost needed to investigate the implications of implementing the proposed change. The investigation will be carried out only with the Client's prior written consent and the Designer will use reasonable endeavours to carry out any investigation within 10 Business Days of making the notification to the Client.
9.3 Following the investigation (if any) the Designer will give a written estimate (valid for 21 days from the date it is given to the Client) showing the increase or decrease in the Fees and any other impact on the Products and/or Services should the proposed change be implemented.
9.4 Should the Client wish to proceed with the proposed change it will notify the Designer in writing of that fact as soon as reasonably practicable after receipt of the written estimate but not later than ten Business Days (or such longer period as may be agreed) after such receipt.
9.5 Until any change is formally agreed between the Designer and the Client, the Designer will continue to perform and be paid for the Products and/or Services as if the change had not been proposed.
9.6 The Designer shall from time to time submit to the Client for approval proofs of the Client Deliverables ('Proofs'), and the Client shall either approve the Proofs or request revisions, corrections or additions ('Changes') to be made to the Proofs provided that such Changes fall within the Project Proposal.
9.7 If the Client does not request any Changes to be made to the Proofs within 14 days of their submission it shall be deemed to have approved them. Once the Proofs have been approved or deemed approved, the Client Deliverables shall be deemed to be accepted by the Client and shall constitute the final approved versions of the Client Deliverables ('Final Designs').
9.8 There shall be no additional charges to the Client for any Changes requested by the Client:
(a) to the Client Deliverables before the Proofs have been approved in accordance with Condition 9.6 PROVIDED THAT the number of iterations of Changes shall not exceed two; or
(b) to the Final Designs at any time if the Changes are necessary to correct errors on the part of the Designer or to accord with any description of the Client Deliverables in the Project Proposal.
9.9 Any other Changes requested by the Client shall be chargeable to the Client at the Designer's standard rates in force at the date the Changes are requested. Any additional charges shall be paid within 14 days of the date of the Designer's invoice therefor.
9.10 The Client shall be deemed to have approved any Changes that have been made to the Client Deliverables if it does not notify the Designer to the contrary within 14 days of the Changes being made.
9.11 If during the period mentioned in Condition 9.10, the Client notifies the Designer that it still does not approve the Client Deliverables despite the Changes being made, then the parties will negotiate in good faith to resolve the matter. If the parties are unable to resolve the matter within a period of 14 days following the expiry of the period mentioned in Condition 9.10,the Client shall be entitled to terminate the Contract. If the Client does not terminate the Contract during such period, then it shall be deemed to have approved the Client Deliverables.
10.1 Each party hereto ('Receiving Party') agrees that during and after the term of the Contract it will keep secret and confidential and will not, without the prior written consent of the other party ('Disclosing Party'), use or disclose to any third party any information relating to the business or affairs of the Disclosing Party that has been disclosed to it by the Disclosing Party pursuant to or otherwise in connection with the Contract (whether orally or in writing and whether or not such information is expressly stated to be confidential or marked as such).
10.2 The Receiving Party may only disclose such information to those of its employees, agents, consultants and sub-contractors who need to know the same, shall ensure that such employees, agents, consultants and sub-contractors are aware of and comply with the provisions of this Condition 10, and shall indemnify the Disclosing Party against any loss or damage which the Disclosing Party may sustain or incur as a result of any breach of confidence by any of the Receiving Party's employees, agents, consultants and sub-contractors.
10.3 The provisions of this Condition 10 shall not apply to any such information which:
(a) comes into the public domain otherwise than through unauthorised disclosure by the Receiving Party or anyone on its behalf;
(b) is already in the public domain or known to the Receiving Party free of any obligation of confidence prior to the commencement of the Contract;
(c) is independently developed by the Receiving Party;
(d) is lawfully acquired by the Receiving Party from a third party who owes no duty of confidence to the Disclosing Party; or
(e) is required by any court of competent jurisdiction or by a governmental or regulatory authority to be disclosed or where there is a legal right, duty or requirement to disclose, provided that, where possible and without breaching any such requirements, not less than two days' notice is given to the Disclosing Party of any such disclosure.
11. Intellectual Property Rights
11.1 The parties hereby acknowledge and agree that:
(a) the Background Materials and all and any Intellectual Property Rights therein or relating thereto are and shall at all times remain owned by the Designer and its licensors;
(b) the Input Materials and all and any Intellectual Property Rights therein or relating thereto are and shall at all times remain owned by the Client;
(c) subject to Condition 11.2, all Intellectual Property Rights in or arising in connection with the Services and/or the Products are and shall at all times be owned by the Designer and its licensors.
11.2 The Designer hereby grants to the Client a non-exclusive, non-transferable, royalty-free licence to use the Client Deliverables for its own internal business purposes subject to payment in full of all sums payable by the Client under the Contract.
11.3 The Client acknowledges that, in respect of any third party Intellectual Property Rights in the Client Deliverables, the Client's use of any such Intellectual Property Rights is conditional on the Designer obtaining a written licence from the relevant licensor on such terms as will entitle the Designer to license such rights to the Client.
11.4 The Designer reserves the right to take photographs of the Client's premises both before and after the supply of the Products and/or Services and the Client consents to the Designer using such photographs for promotional and marketing purposes.
12. Warranties and Liability
12.1 The Designer warrants to the Client that it will exercise reasonable care and skill in performing the Services.
12.2 The Designer warrants that on delivery and for a period of 12 months from the date of delivery the Products, to the extent that they have been manufactured by the Designer, shall:
(a) conform in all material respects with their description;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Products Act 1979); and
(d) be fit for any purpose held out by the Designer.
12.3 Subject to Condition 12.4, if:
(a) the Client gives notice in writing during the warranty period specified in Condition 12.2 within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in Condition 12.2;
(b) the Designer is given a reasonable opportunity of examining such Products; and
(c) the Client (if asked to do so by the Designer) returns such Products to the Designer's place of business at the Client's cost,
the Designer shall, at its option, repair or replace the defective Products, or refund the price of the defective Products in full.
12.4 The Designer shall not be liable for the Products' failure to comply with the warranties in Condition 12.2 if:
(a) the Client makes any further use of such Products after giving a notice in accordance with Condition 12.3;
(b) the defect arises because the Client failed to follow the Designer's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products or (if there are none) good trade practice;
(c) the defect arises as a result of the Designer following any drawing, design or specification supplied by the Client;
(d) the Client alters or repairs such Products without the written consent of the Designer;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
(f) the Products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
12.5 Except as provided in this Condition 12, the Designer shall have no liability to the Client in respect of the Products' failure to comply with the warranties set out in Condition 12.2.
12.6 The warranties in Condition 12.2 shall apply to any repaired or replacement Products supplied by the Designer under Condition 12.3 for the unexpired portion of the appropriate warranty period specified in Condition 12.2.
12.7 Where, in connection with a supply of Products, the Designer supplies any goods supplied by a third party, the Designer does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to the Designer.
12.8 Subject to the foregoing, all conditions, warranties and other terms implied by statute, common law or otherwise, in respect of the supply of the Products and/or Services are hereby excluded to the fullest extent permitted by law.
12.9 Nothing in these Conditions shall limit or exclude the Designer's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Products and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Products Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987.
12.10 Subject to Condition 12.9, the Designer shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from or in connection with any documents, materials, data or other information or instructions supplied to the Designer by the Client in connection with the provision of the Good and/or Services including, without limitation, the Input Materials, which are incomplete, incorrect, inaccurate, illegible, out of sequence or in any wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.
12.11 Subject to Condition 12.9 and save as expressly provided in these Conditions, the Designer shall not be liable to the Client by reason of any representation (unless fraudulent) or any implied warranty, condition or other term, or any duty at common law or under the express terms of the Contract and whether in contract, tort (including negligence), breach of statutory duty or otherwise for any consequential loss or damage arising out of or in connection with the supply of the Products and/or Services (including any delay in performing or failure to supply the Products and/or Services in accordance with the Contract or at all).
12.12 Subject to Condition 12.9, the entire liability of the Designer in contract, tort (including negligence), breach of statutory duty or otherwise arising out of or in connection with the Contract shall not exceed the amount of the Fees.
12.13 For the purposes of Condition 12.11, the expression 'consequential loss or damage' includes, but is not limited to: loss of anticipated profits or savings; damage to goodwill or reputation; loss of expected future business; damages, costs or expenses payable to any third party; indirect losses; and any consequences not directly or naturally arising.
13. Force Majeure
13.1 Neither party shall be liable to the other or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations under the Contract (other than the payment of monies by the Client) if the delay or failure was due to an event of Force Majeure.
13.2 In these Conditions 'Force Majeure' means an event beyond the reasonable control of a party including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party 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 suppliers or subcontractors.
14.1 Subject to Condition 14.2, the Client may cancel an order for the Products and/or Services at any time prior to their delivery, in the case of Products, and at any time prior to the first day for their performance, in the case of Services, by giving prior written notice thereof to the Designer. Where, in the case of Services, such notice of cancellation is received by the Designer less than 14 days before the first day for performance of the Services the Client shall pay the Designer as compensation for the loss of bargain occasioned by the cancellation of the order a sum equal to 10 per cent of the Fees. Any deposit paid by the Client shall be forfeited to the Designer and will not be recoverable by the Client from the Designer if the Contract is terminated by the Client.
14.2 No order for bespoke Products that are to be manufactured by the Designer or its agents, contractors or employees, or for Products that are to have any process applied to them by the Designer or its agents, contractors or employees in accordance with a specification supplied by the Client, may be cancelled by the Client except with the agreement in writing of the Designer and on terms that the Client shall indemnify the Designer in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Designer as a result of cancellation.
14.3 The Designer may, without incurring any liability therefor, cancel any order for the Products and/or Services placed by the Client at any time prior to their delivery, in the case of Products, and at any time prior to the first day for their performance, in the case of Services, by giving written notice thereof to the Client. The Designer will repay any deposit paid by the Client if the Contract is cancelled by the Designer.
15.1 The Contract shall, unless terminated earlier in accordance with the provisions of this Condition, continue until the Services have been performed.
15.2 The Contract may be terminated forthwith on written notice:
(a) by the Designer in accordance with Condition 7.9(a) or Condition 8.2(b);
(b) by the Client in accordance with Condition 9.11;
(c) by either party if the other party commits any material or repeated breach of any term of the Contract and (in the case of a breach capable of being remedied) fails within 14 days of receipt of a written request so to do, to remedy the breach; or
(d) by either party if 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 body corporate) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) 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;
(e) by either party if the other party enters into any compromise or arrangement with its creditors;
(f) by either party if a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a body corporate) 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;
(g) by either party if the other party (being a natural person) is the subject of a bankruptcy petition or order;
(h) by either party if 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;
(i) by either party if 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 body corporate);
(j) by either party if a floating charge holder over the assets of the other party (being a body corporate) has become entitled to appoint or has appointed an administrative receiver;
(k) by either party if 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;
(l) by either party if 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 Conditions 15.2(a) to (k) (inclusive);
(m) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(n) the other party (being a natural person) 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.
For the purposes Condition 15.2(c): a 'material breach' means a breach of any terms of this Contract which is serious in the widest sense of having a serious effect on the benefit which the other party would otherwise derive from the Contract (no account being taken as to whether it occurs by some accident, mishap, mistake or misunderstanding); and a breach shall be capable of remedy if the party in breach can comply with the provisions in question in all respects other than as to time of performance (provided that time for performance is not of the essence).
15.3 Any termination of the Contract pursuant to this Condition 15 shall be without prejudice to any other rights or remedies either party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into force on or after such termination.
15.4 On the termination of the Contract:
(a) the Client shall immediately pay to the Designer all of the Designer's outstanding unpaid invoices and, in respect of Products and/or Services supplied but for which no invoice has been submitted, the Designer shall submit an invoice, which shall be payable by the Client immediately on receipt;
(b) the Client shall return to the Designer all and any:
(i) Designer Materials;
(ii) documents, products and materials containing information relating to the business and affairs of the Designer that the Client is required to keep secret and confidential under Condition 10; and
(iii) rented goods that have been supplied to it by the Designer, in its possession together with any Client Deliverables that have not been fully paid for. If the Client fails to do so, then the Designer may enter the Client's premises and take possession of them. Until they have been returned or repossessed, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
15.5 In the event of the Designer terminating the Contract under Condition 15.2(a)or 15.2(c) or the Client terminating the Contract under Condition 15.2(b), the Designer shall notify the Client of the extent of the Products and/or Services which remain to be supplied as at the date of termination and the Client shall forthwith pay to the Designer, by way of liquidated damages, a termination charge equal to 50% of the Fees which would have become payable in respect of such Products and/or Services if the same had been supplied by the Designer together with such proportion of the Fees on a quantum meruit basis as is attributable to the Products and/or Services supplied up to the date of termination.
16. Data Protection
16.1 The parties undertake to comply with the provisions of the Data Protection Act 1998 and any related legislation in so far as the same relate to the provisions of, or their obligations under, the Contract.
17.1 These Conditions together with the further terms and conditions set out in the Project Proposal and/or the Furniture Pack constitute the entire agreement between the parties in relation to the supply of the Products and/or Services and supersede any previous agreements, arrangements, representations, undertakings, proposals and understandings, written or oral, between the parties in relation thereto. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law. In entering into the Contract, the Client acknowledges that it has not relied on any representation, written or oral, not expressly set out in the Contract. Nothing in the Conditions shall be interpreted as excluding either party from liability for fraudulent misrepresentation.
17.2 No relaxation, forbearance, delay or indulgence by either party in enforcing any of its rights under the Contract shall be deemed to be a waiver of that right, nor shall any waiver by either party of any breach of any term of the Contract operate as a waiver of any subsequent or continuing breach thereof.
17.3 The Designer may, but the Client may not, at any time assign, transfer or deal in any other manner with the Contract or any of its rights under it or sub-contract all or any of its obligations under it.
17.4 Every provision of the Contract is separate and distinct from all of the other provisions and, in the event that any provision of the Contract is or becomes illegal, void, invalid or unenforceable, it shall, to the extent required, be deemed not to form part of the Contract and the legality or enforceability of the other provisions of the Contract shall not be affected.
17.5 A person who is not a party to the Contract shall not have any rights under or in connection with it.
17.6 Nothing in the Contract is intended, or shall be deemed, to constitute a partnership between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other in any way.
17.7 In the event of any ambiguity or conflict between the Conditions and the terms of the Project Proposal and/or the Furniture Pack, the terms of the Project Proposal shall prevail in relation to the Services and the terms of the Furniture Pack shall prevail in relation to the Products.
17.8 All notices which either party hereto is required or may desire to give to the other shall be served personally or by letter or facsimile posted or transmitted to the other at its business address set out in the Project and Payment Schedule or to such alternative address as may be notified in accordance with the provisions of this Condition. Any notices served personally shall be deemed served at the time of such service; any notice sent by post shall be deemed served 48 hours after the time of posting; and any notice sent by facsimile shall be deemed served at the time of transmission, subject to evidence of successful transmission to the other party. Notices may not be sent by email. The Contract shall be governed by and construed in accordance with English Law and the parties hereby submit to the exclusive jurisdiction of the English courts in respect of any claim, dispute or matter arising out of or in connection with.