Terms and Conditions
The following definitions and rules of interpretation apply in these conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Change Order: has the meaning given in clause 5.2.
Charges: the charges payable by the Customer to NewTerritory for the supply of the Services in accordance with clause 6 (Charges and Payment).
Confidential Information: means all confidential information (however recorded or preserved) disclosed by a party (including its employees, officers, representatives and advisers) to the other party (including its employees, officers, representatives and advisers), including but not limited to: (i) any information that would be regarded as confidential by a reasonable business person relating to the business, affairs, customers, clients, suppliers, operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party, (ii) any information developed by the parties in the course of carrying out this Contract.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 13.4.
Contract: the contract between NewTerritory and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases Services from NewTerritory.
Deficiency: means material failure or defect in the function of the Deliverable.
Deliverables: the deliverables set out in a SOW produced by NewTerritory for the Customer.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, copyright in design, drawings, photographs, artwork and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer’s order for Services as set out in the SOW.
Services: the services, including the Deliverables, supplied by NewTerritory to the Customer as set out in the SOW.
Statement of Work or SOW: a detailed plan, agreed in accordance with clause 5, describing the Services to be provided by NewTerritory and the related matters listed in the template statement of work set out in Schedule 1.
NewTerritory: NewTerritory Design Limited registered in England with company number 10704986.
Website: NewTerritory’s website with link: http://newterritory.io/
1.2.1. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.3. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.2.4. 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.
1.2.5. A reference to writing or written includes email.
- BASIS OF CONTRACT
2.1. The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2. The Order shall only be deemed to be accepted when NewTerritory issues written acceptance of the Order or a SOW is signed by NewTerritory (whichever comes first) at which point and on which date the Contract shall come into existence (Commencement Date).
2.3. Any samples, drawings, descriptive matter or advertising issued by NewTerritory, and any descriptions or illustrations contained in NewTerritory’s brochures, marketing material or Website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- SUPPLY OF SERVICES
3.1. NewTerritory shall supply the Services to the Customer in accordance with the SOW.
3.2. NewTerritory shall use all reasonable endeavours to meet any performance dates specified in the SOW or otherwise, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3. NewTerritory warrants to the Customer that the Services will be provided using reasonable care and skill.
- CUSTOMER’S OBLIGATIONS
4.1. The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the SOW are complete and accurate;
(b) cooperate with NewTerritory in all matters relating to the Services;
(c) provide NewTerritory, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation, property and other facilities or assets as reasonably required by NewTerritory for the provision of the Services;
(d) ensure that Customer property or assets provided to NewTerritory are fully insured;
(e) inform NewTerritory of all health and safety and security requirements that apply at the Customer’s premises;
(f) provide NewTerritory in a timely manner with such information, feedback and materials as NewTerritory may reasonably require in order to supply the Services, and ensure that such information is complete and accurate;
(g) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
(h) comply with any additional obligations as set out in the SOW.
4.2. The Customer shall be responsible for providing NewTerritory with a written notification prior to the commencement of NewTerritory’s provision of the Services, and promptly thereafter of any changes in the relevant law, with details of any legal requirements or specifications that the Deliverables should be complying with under all applicable laws, statutes, regulations, guidelines and codes (including health and safety regulations or standards) from time to time in force in the relevant jurisdiction (Legal Requirements) and the Customer further agrees that the Customer shall have the sole responsibility of becoming aware and obtaining knowledge of any such Legal Requirements.
4.3. NewTerritory shall accept no responsibility or liability should any of the Deliverables fail to comply with the Legal Requirements due to the Customer’s failure to comply within reasonable time with the provisions in clause
4.4. The Customer accepts full responsibility for:
(a) all proofreading and copy-checking before any of the Deliverables are made available to the public, become live, go to print or to be manufactured; and
(b) checking the Deliverables’ artwork or facsimile of the artwork for corrections and communicating to NewTerritory any desired changes before such Deliverables are finalised.
4.5. If NewTerritory’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer to perform any relevant obligation
(a) without limiting or affecting any other right or remedy available to it, NewTerritory shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays NewTerritory’s performance of any of its obligations;
(b) NewTerritory shall not be liable for any costs, losses or additional Charges sustained or incurred by the Customer arising directly or indirectly from NewTerritory’s failure or delay to perform any of its obligations as set out in this clause 4.6; and
(c) the Customer shall reimburse NewTerritory on written demand for any costs or losses sustained or incurred by NewTerritory arising directly or indirectly from the Customer Default.
4.6. The Customer hereby gives permission to NewTerritory to use photos and/or videos of the Deliverables on the Website, social media profiles, presentations and any other marketing material for the purposes of promoting NewTerritory’s business. The Customer shall have the right to withdraw such consent at any time by giving written notice to NewTerritory.
- STATEMENTS OF WORK
5.1. A SOW may be agreed by the Customer and NewTerritory, following the Customer’s request for specific Services and NewTerritory’s reasonable request of information for the purposes of assessing the Services and drafting the SOW. For the avoidance of doubt, NewTerritory shall not be obliged to accept the provision of Services proposed by the Customer.
5.2. Once a SOW has been agreed and signed by the parties it may only be amended in accordance with a Change Order signed by both parties which should set out the proposed changes and effect that those changes will have on the Deliverables, Charges, timetable for the Services and any of the other terms of the relevant SOW.
5.3. Each SOW shall automatically become part of these Conditions once agreed and signed by both parties and shall not form a separate contract to them.
5.4. Unless the relevant SOW states otherwise, the following procedures will govern the Customer’s acceptance of Deliverables:
5.4.1. The Customer shall have fifteen (15) Business Days (Testing Period) to test and evaluate the Deliverables under a SOW.
5.4.2. If the Customer does not notify NewTerritory in writing of any Deficiency or requested modifications to the Deliverable, including changes to the artwork of design, within the Testing Period, then the Deliverables will automatically be deemed accepted by the Customer.
5.4.3. If the Customer notifies NewTerritory in writing of a Deficiency with the Deliverables, then upon NewTerritory’s receipt of such notice, NewTerritory will have up to thirty (30) Business Days to review the Customer’s notice and provide appropriate remedies to the Customer. The Customer shall then have an additional Testing Period to evaluate and test the Deliverables modified by NewTerritory.
- CHARGES AND PAYMENT
6.1. The Charges for the Services shall be calculated as follows:
6.1.1. the Charges shall be calculated in accordance with NewTerritory’s daily rates as set out in the SOW or in accordance with any other calculations that the parties may agree to in a SOW;
6.1.2. NewTerritory’s daily fee rates for each individual are calculated on the basis of an eight-hour day from 9am to 6pm worked on Business Days;
6.1.3. Should the Customer request NewTerritory’s Services for hours and days outside of those referred to in clause 6.1.2, NewTerritory shall be entitled to charge the Customer an overtime fee; and
6.1.4. Should the Customer request NewTerritory to provide a Service that is outside the scope of the SOW, then that Service shall incur additional costs and charges payable by the Customer to NewTerritory. The Charges for providing such Service may be agreed by the parties prior to work commencement of that particular Service.
6.2. The Customer agrees to pay 50% of the Charges to NewTerritory in advance and in any case, within ten (10) Business Days from the creation of the Contract (Advance Payment).
6.3. NewTerritory shall invoice the Customer for the balance of the Charges on completion of the Services.
6.4. All amounts payable to NewTerritory by the Customer, including the Charges stated in a SOW, may be exclusive of costs, expenses and disbursements which NewTerritory, or the individuals whom NewTerritory engages in connection with the Services, may incur and NewTerritory shall be entitled to charge these to the Customer supplementary to the Charges. Such costs shall include, but shall not be limited to:
(a) travelling expenses;
(b) hotel costs;
(c) photography, copywriting, printing, working file costs;
(d) the cost of services provided by third parties and required by NewTerritory for the performance of the Services; and
(e) the cost of any materials.
6.5. All amounts payable to NewTerritory by the Customer are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice.
6.6. Any modification of the Service requested by the Customer after the Testing Period, shall bear an additional charge calculated on the same basis as the Charges and shall be payable by the Customer to NewTerritory.
6.7. The Customer shall pay each invoice submitted by NewTerritory:
6.7.1. within thirty (30) days of the date of the invoice; and
6.7.2. in full and in cleared funds to a bank account nominated in writing by NewTerritory.
6.8. If the Customer fails to make a payment due to NewTerritory under the Contract by the due date, then, without liming NewTerritory’s remedies under clause 12, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.9 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
6.9. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.1. The provisions of this clause shall not apply to any Confidential Information that:
(a) is or becomes generally available to the public; and
(b) the parties agree in writing is not confidential or may be disclosed.
7.2. Each party shall keep the other party’s Confidential Information confidential and shall not use such Confidential Information except for the purpose of performing its rights and obligations under or in connection with this Contract (Permitted Purpose).
7.3. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by court, and to the extent that it is legally permitted to do so, it shall give the other party a reasonable notice of such disclosure.
7.4. On termination of the Contract and to the extent that it does not obstruct the Customer from using the Deliverables, each party shall:
(a) destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information;
(b) erase all the other party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties; and
(c) certify in writing to the other party that it has complied with the requirements of this clause.
7.5. The provisions of this clause 7 shall continue to apply after termination of the Contract.
- INTELLECTUAL PROPERTY RIGHTS
8.1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by NewTerritory.
8.2. NewTerritory grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, perpetual and irrevocable licence to use and create duplicates of the Deliverables for the purpose of receiving and using the Services and the Deliverables in its business.
8.3. The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 8.2, including to any of its affiliated companies, partnerships or legal entities within its group, without NewTerritory’s prior written consent. For the purposes of this clause 8.3, NewTerritory shall be entitled to charge the Customer an additional fee.
8.4. The Customer grants NewTerritory a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to NewTerritory for the term of the Contract for the purpose of providing the Services to the Customer.
8.5. Subject to clause 8.1, the Customer shall undertake to ensure that it has all necessary licenses or ownership rights of Intellectual Property Rights in any materials provided to NewTerritory (such as the Customer’s logo) and warrants to NewTerritory that it has the right to use them for the purposes of providing the Services.
8.6. The Customer shall indemnify NewTerritory and hold it harmless against any liability, loss, damage, cost (including reasonable legal and professional adviser costs) or expense that NewTerritory suffers of incurs as a result of any claims against NewTerritory in respect of actual or alleged infringement of a third party’s Intellectual Property Rights arising out of the Services.
8.7. NewTerritory shall be entitled to claim authorship for and shall be the owner of Intellectual Property Rights created in the course of providing the Services.
- RESTRICTIVE COVENANTS
9.1. The Customer acknowledges that in providing the Services, NewTerritory may be generating Intellectual Property Rights and as such agrees to the restrictive covenants in this clause.
9.2. Non-solicitation. The Customer covenants with NewTerritory that during the term of the Contract and for a period of 12 months after termination of the Contract, it shall not solicit or entice away or attempt to do so any employee or contractor from the employment or service of NewTerritory.
- LIMITATION OF LIABILITY
10.1. Nothing in this Contract shall limit or exclude NewTerritory’s liability for:
(a) death or personal injury cause by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 13 of the Supply and Services Act 1982 (reasonable care and skill) or any other liability which cannot be limited or excluded by applicable law.
10.2. Subject to clause 10.1, NewTerritory shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data of information;
(f) loss of or damage to goodwill; or
(g) any indirect or consequential loss.
10.3. NewTerritory shall not be responsible for any costs, fines or penalties arising from the Customer’s noncompliance with any Legal Requirements.
10.4. Where the parties have agreed that for the purposes of completing a SOW and delivering or in connection with the Deliverables, the services and expertise of another professional has to be sought, such as an advisor, a manufacturer, or a supplier, the Customer shall be subject to that professional’s terms and conditions in relation to any work provided by them and NewTerritory shall not accept any liability for such professional’s acts, omissions or quality of work even if that professional was recommended to the Customer by NewTerritory.
10.5. Subject to clause 10.1, NewTerritory’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to 100% of the total Charges paid under the Contract.
10.6. The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
10.7. This clause 10 shall survive termination of the Contract.
11.1. Without affecting any other right or remedy available to it, either party may terminate the Contract or a SOW by giving the other party one (1) month’s written notice.
11.2. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(b) the other party suspends, threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
(c) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(d) 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.
11.3. Without affecting any other right or remedy available to it, NewTerritory may suspend the supply of Services under the Contract or a SOW or any other contract between the Customer and NewTerritory if the Customer fails to pay any amount due under the Contract on the date for payment, the Customer becomes subject to any of the events listed in clause 11.2, or NewTerritory reasonably believes that the Customer is about to become subject to any of them.
- CONSEQUENCES OF TERMINATION
12.1. On termination of the Contract all existing SOWs shall terminate automatically.
12.2. On termination of the Contract or a SOW:
(a) the Customer shall immediately pay to NewTerritory all of NewTerritory’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, NewTerritory shall submit an invoice, which shall be payable by the Customer immediately on receipt; and
(b) the Customer shall immediately return to NewTerritory any property or materials owned by NewTerritory and any Deliverable which have not been fully paid for. If the Customer fails to do so, then NewTerritory may enter the Customer’s premises and take possession of them. Until they have returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
12.3. Termination of the Contract or a SOW shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
12.4. If at any stage of the Contract or SOW, any party terminates the Contract or SOW in accordance with clause 11, the Customer agrees to pay NewTerritory, irrespective of whether the Services have been completed:
12.4.1. for all costs incurred by NewTerritory in accordance with clause 6.4 up to the date of termination; and
12.4.2. for Charges as stated below and as the case may apply:
- a) If the duration of the Services as stated in the relevant SOW is for 2 weeks or less, and the Contract or SOW is terminated in less than 48 hours, NewTerritory shall charge for 1 day’s full day rate.
- b) If the duration of the Services as stated in the relevant SOW is for more than 2 weeks to 6 week or less, and the Contract or SOW is terminated in less than 1 week, NewTerritory shall charge for 1 week’s full day rate.
- c) If the duration of the Services as stated in the relevant SOW is for more than 6 weeks to 12 week or less, and the Contract or SOW is terminated in less than 2 weeks, NewTerritory shall charge for 2 weeks’ full day rate.
- d) If the duration of the Services as stated in the relevant SOW is for more than 12 weeks to 24 weeks or less, and the Contract or SOW is terminated in less than 4 weeks, NewTerritory shall charge for 4 weeks’ full day rate.
- e) If the duration of the Services as stated in the relevant SOW is for more than 24 weeks to 52 weeks or less, and the Contract or SOW is terminated in less than 12 weeks, NewTerritory shall charge for 12 weeks’ full day rate.
- f) If the duration of the Services as stated in the relevant SOW is for more than 52 weeks or the duration is not specified, and the Contract or SOW is terminated at any time, NewTerritory shall charge for the full day rate corresponding to the number of days for which NewTerritory has provided Services to the Customer.
12.5. For the purposes of clause 12.4, the Customer agrees that NewTerritory may use the Advance Payment to cover costs and charges set out in clause 12.4. Where an amount is owed to NewTerritory by the Customer over and above the Advance Payment, the Customer agreed to pay the balance to NewTerritory. Where, in accordance with clause 12.4, the Advance Payment is not used in full by NewTerritory, NewTerritory shall return the balance to the Customer.
12.6. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
13.1. Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
13.2. Assignment. Neither party may assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligation under the Contract without the other party’s prior written consent.
13.3. Entire agreement. The Contract (including all SOWs) constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, proposals, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. If the terms of a SOW directly conflict with this Contract, then the provisions of this Contract shall prevail unless the SOW specifically (i) describes the conflict and (ii) states that it is intended for the provisions in the SOW to prevail.
13.4. Variation. Except as set out in this Contract, no variation of the Contract or the SOW shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.5. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach of default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other remedy.
13.6. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
13.7. Notices. Any notice given to a party under or in connection with the Contract shall be in writing and shall be 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 sent by email to agreed email addresses. Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 9am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by email, at 9am on the next Business Day after transmission.
13.8. Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
13.9. Governing law. The Contract, and any dispute or claim (including non-contractual disputes of 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.
13.10. Jurisdiction. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.