1. Application of Terms and Conditions
1.1 The Agency shall supply and the Client shall purchase the Services in accordance with and subject to these Terms and Conditions.
1.2 The Contract shall exclude any other terms and conditions or other agreement terms subject to which any such Quotation or Response is accepted or purported to be accepted, or any such order is made or purported to be made, by the Client.
2. Definitions and Interpretation
2.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
|‘Agency’||means Within Design Limited, trading as Within International a company registered in England under 05811037 of Old Gun Court, North Street, Dorking, Surrey, United Kingdom, RH4 1DE and includes all employees and agents of Within Design Limited;|
|‘Business Day’||means any day other than a Saturday, Sunday or public bank holiday in England, when banks in London are open for business;|
|‘Control’||shall be determined by reference to Section 1124 of the Corporation Tax Act 2010 or, where the entity concerned is neither a body corporate nor a partnership for the purposes of that section, by reference to the principles in that section;|
|‘Client’||means the person, organisation or legal entity named in the Quotation or Response for the sale of the supply of the Services whose order for the Services is accepted by the Agency;|
|‘Client Materials’||means the specific materials supplied by or on behalf of the Client in any media and in any form;|
|‘Commencement Date’||means the commencement date for the Contract as set out in the Quotation or Response, as applicable;|
|‘Confidential Information’||means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with this Contract (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such) including without limitation any Know How;|
|‘Contract’||means the contract for the purchase and sale of the supply of the Services under these Terms and Conditions;|
|‘Core IP’||means any Intellectual Property Rights which are owned or controlled by the Agency and/or that have been created or developed by the Agency or on behalf of the Agency in advance of, and separate to, the provision of Services in any media and in any form;|
|‘Data Protection Legislation’||means all applicable data protection and privacy legislation in force from time to time in the UK including but not limited to, the General Data Protection Regulation 2016/679, the Data Protection Act 2018, the UK GDPR (if applicable), the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications 2003 (SI 2003/2426) as amended, and any other similar national privacy legislation and any replacement legislation coming into effect from time to time;|
|‘Deliverables’||means the deliverables set out in the Quotation and/or Response produced by the Agency for the Client;|
|‘Fee’||means the Fees stated in the Quotation or Response, as applicable, payable for the Services;|
|‘Group Company’||means, in relation to a Party, any and all group undertakings (as such term is defined in Section 1161 of the Companies Act 2006 as amended) from time to time of that Party;|
|‘Intellectual Property Rights’||means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks 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, data, rights in data, database rights, rights to use, and protect the confidentiality of, confidential information (including trade secrets), Know How 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;|
|‘Know How’||means the confidential knowledge, know-how, methods, processes and applications of the Agency in respect of any materials, goods or services (which are not in the public domain) which were developed, created or devised by the Agency from time to time;|
|‘Month’||means a calendar month;|
|‘Personal Data’||means personal data, including ‘special personal data’ (as defined by the Data Protection Legislation) that has been disclosed to the Agency by Client or which is collected by the Agency on behalf of Client when the Agency acts in its capacity as a processor pursuant to the Contract or which is collected by either Party and shared with the other Party when both Parties act in their capacity as controllers;|
|‘Response’||means a response to a RFP provided by the Agency to the Client in respect of the Services and Deliverables;|
|‘RFP’||means a request for proposal submitted by the Client to the Agency in connection with the provision and/or potential provision of Services;|
|‘Services’||means the Services to be provided to the Client as specifically set out in the Quotation and/or Response;|
|‘Service Delivery Milestones’||means the estimated target dates for completion of certain elements of the Services as set out in the Response and/or Quotation;|
|‘Specification’||means the description or specification of the Services provided by the Agency to the Client in the Quotation and/or Response;|
|‘Third-Party Fees’||means fees and/or expenses payable by the Agency to third parties relating to and/or associated with the provision of the Services which are not included in the Fees;|
|‘Third-Party Materials’||means any work or materials authored, created or performed by a third party and either commissioned for, or used in relation to, the Services, including library images and stock content; and|
|‘Quotation’||means a written statement from the Agency setting out the estimated cost for the Services identified in writing as a “quotation”.|
2.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
(a) ‘writing’, and any cognate expression, includes a reference to any communication effected by written or electronic transmission or similar means but excluding fax transmission;
(b) a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
(c) a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule; and
(d) a ‘Party’ or the ‘Parties’ refer to the parties to these Terms and Conditions.
2.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
2.4 Words imparting the singular number shall include the plural and vice versa.
2.5 References to any gender shall include the other gender.
3. Basis of Contract
3.1 These Terms and Conditions are incorporated into every Contract and acceptance of a Quotation or Response from the Agency by the Client constitutes the Client’s unconditional acceptance of these Terms and Conditions.
3.2 A Quotation or Response from the Agency constitutes a non-binding offer to the Client to purchase the Services from the Agency in accordance with these Terms and Conditions.
3.3 A valid Contract will come into existence between the Agency and the Client and bind the Parties when the Agency provides the latter of:
(a) the Agency’s written acceptance of the Client’s offer;
(b) the provision of Services by the Agency in connection with the Response and/or Quotation; or
(c) the issuing by the Agency of a relevant invoice to the Client applicable to this provision of the relevant Services.
3.4 The Agency may withdraw any offer, Quotation or Response at any time prior to formation of the Contract in accordance with Clause 3.3 above.
3.5 The Agency’s employees or agents are not authorised to make any representations concerning the Services unless confirmed by the Agency in advance in writing. In entering into the Contract, the Client acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
3.6 Without limitation to Clause 3.3, Quotations, Responses, sales literature, price lists and other documents issued by the Agency in relation to the Services are subject to alteration without notice and do not constitute offers to sell the Services which are capable of acceptance.
3.7 Any typographical, clerical, obvious or other accidental errors or omissions in any Quotations, Responses, sales literature, price list, acceptance of offer, invoice or other document or information issued by the Agency shall be subject to correction without any formal variation in accordance with Clause 24 or any liability on the part of the Agency.
3.8 If there is an inconsistency between any of the provisions of this Contract, a Quotation and a Response respectively, the provisions of this Contract shall prevail in preference to a Response and Quotation, and the provisions of a Response shall prevail over the provisions of a Quotation.
4. The Services
With effect from the Commencement Date, the Agency, shall in consideration of the Fee being paid in full by the Client, provide the Services expressly identified in the Quotation and/or Response in accordance with Clauses 6 and 7.
5.1 The Fee for the Services shall be listed in the Agency’s Quotation and/or Response issued to the Client, current at the date of acceptance of the Client’s order or such other fee as may be agreed in writing by the Agency and the Client.
5.2 The Agency reserves the right, by giving written notice to the Client at any time before delivery or provision of the Services, to increase the Fee of the Services to reflect any increase in the cost to the Agency which is due to any factor beyond the reasonable control of the Agency (including, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in specifications for the Services which are requested by the Client, or failure of the Client to give the Agency adequate information or instructions.
5.3 Except as otherwise stated under the terms of any Quotation and/or Response or in any fee list of the Agency, and unless otherwise agreed in writing between the Client and the Agency, all fees are inclusive of the Agency’s charges for providing the Deliverables under the definition of the Deliverables presented in the Quotation and/or Response.
5.4 All Fees and other charges issued or incurred by the Agency shall be exclusive of any applicable value added tax, excise, sales taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Services, which the Client shall be additionally liable to pay to the Agency. The Client shall be solely responsible to pay all value added tax and other tax charges that are levied or imposed by reason of the transactions contemplated by these Terms and Conditions whether as part of the delivery of the Services or otherwise.
5.5 The Agency may invoice the Client for the Third-Party Fees monthly in arrears. All Third-Party Fees shall be charged to the Client by the Agency at cost.
6.1 Upon formation of a valid Contract, in accordance with Clause 3.3, the Agency will issue an invoice to the Client for 50% of the Fee. The remaining 50% of the Fee shall be invoiced to the Client following completion of the Services.
6.2 The Agency shall use its reasonable endeavours to issue an invoice to the Client at its earliest convenience in respect of the Quotation and/or Response upon formation of a valid Contract and following completion of the Services.
6.3 The Client shall pay each invoice submitted by the Agency within 30 days of the date of the invoice and in full and in cleared funds to a bank account nominated in writing by the Agency with time for payment being of the essence of the Contract.
6.4 The Client shall pay 50% of the Fee to the Agency for the Services set out in the Quotation and/or Response in advance of the Services commencing and the remaining 50% of the Fee shall be due and payable by the Client to the Agency upon completion of the Services or as otherwise agreed between the parties in writing. The Fee is, earned on a non-reconcilable basis and shall be payable in addition to all production, studio costs and other disbursements and expenses committed to or incurred. All production costs and expenses are generally invoiced at the value of estimates.
6.5 In the event of any cancellation, amendment or addition to the Services provided, the Client will reimburse the Agency for any charges or expenses committed to or incurred by the Agency. The Client shall also pay the Agency’s remuneration covering the cancelled or amended Services as well as any charges imposed on the Agency by third parties arising from the cancellation or amendment.
6.6 In the event of the Client failing to settle any invoice by the intended Commencement Date of the Services, the Agency shall be entitled to delay commencement of the provision of the Services until such invoice is settled in full.
6.7 The Agency shall issue fee estimates, as part of the Quotation and/or Response, in advance for all work to be paid for by the Client. Should this not be possible, the Client must approve the fee estimate in writing in advance, and this will serve as sufficient authority until the relevant invoice is issued.
6.8 If the Client fails to pay to the Agency any sum payable by the Client on the due date for payment (other than in the case of a bona fide dispute), the Agency shall be entitled to charge the Client interest on the overdue sum for the period from and including the due date of payment up to the date of actual payment of the full amount at a rate of six per cent (6%) above the UK base rate from time to time of Barclays Bank plc.
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. Delivery and Performance
7.1 The Services and any Deliverables must not materially infringe the rights of any third party or cause the Client to infringe such rights.
7.2 The Agency shall use its reasonable endeavours to meet all Service Delivery Milestones as set out in the Quotation and/or Response.
7.3 The Agency shall perform the Services with all due care and skill and shall ensure that the Services are carried out by suitably qualified, skilled and experienced personnel.
7.4 Any person authorised by the Client shall be entitled, subject to reasonable notice in writing, to inspect work being undertaken in relation to the Services at all reasonable times at the Agency’s premises.
7.5 The Agency shall ensure that the Deliverables materially comply with the Service Specification, and are of satisfactory quality, fit for purpose and free from defects in design, materials and workmanship.
8. Intellectual property rights
8.1 It is the intention of the Parties that:
(a) the Client shall own all Deliverables (except to the extend any Third-Party Materials, Know-How or Core IP is comprised in and/or forms part of the Deliverables) produced by the Agency upon payment of the Fees in full;
(b) the Intellectual Property Rights of whatever nature in the Know How and Core IP are, and shall remain, at all times the sole property of the Agency. The Agency reserves the right to grant a licence to use its Know How and Core IP to any other parties;
8.2 Upon payment of the Fees in full, the Agency hereby assigns the Intellectual Property Rights in the Deliverables (except to the extend any Third-Party Materials, Know-How or Core IP is comprised in the Deliverables) to the Client;
8.3 The Agency grants a licence to the Client to use the specific aspects of the Know How and Core IP solely in connection with the effective use of the Deliverables, with no right to grant sub-licences as referred to as part of the Services;
8.4 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any Client Materials) shall be owned by the Agency until the Client has settled all outstanding Fees in full;
8.5 The Client grants a non-exclusive, royalty free licence to the Agency, any Agency Group Company and authorised third parties to use the Client Materials for the provision of the Services and any associated and connected activities;
8.6 The Client confirms it has all of the necessary consents, licences and permissions in respect of the Client Materials to allow the Agency to provide the Services and all associated activities and use the Client Materials in connection with the Contract.
8.7 The Core IP, Know How and Third-Party Materials are proprietary to the Agency (or the appropriate third party rights owner(s)) and the Client acknowledges and accepts it acquires no rights in or to them other than those expressly granted by this Contract.
8.8 The Client acknowledges, accepts and agrees that all rights not expressly granted to the Client under the Contract shall be reserved to the Agency.
9.1 The Client shall, within 5 Business Days of receipt of any draft Deliverables notify the Agency in writing whether the Client:
(a) approves the draft Deliverable;
(b) wishes modifications to be made to the draft Deliverable (giving clear details and reasonable instructions in writing); or
(c) rejects the draft Deliverable and requires the Agency to provide an adapted draft Deliverables (giving clear details, reasons and instructions in writing).
9.2 If the Client does not respond to a written submission for approval of any Deliverables within 5 Business Days after receiving it from the Agency, then the Deliverables provided by the Agency to the Client shall be deemed approved.
10. Data protection
10.1 For the purposes of this Clause 10, where terms and expressions used are not defined in this Contract, they shall have the meaning assigned to them in the Data Protection Legislation.
10.2 Each Party shall comply in all respects with all relevant Data Protection Legislation.
10.3 Where the Agency acts as data processor under this Contract, the Agency shall solely process the Personal Data for the purposes of fulfilling its obligations under this Contract and in compliance with the Client’s documented instructions as set out in this Contract and as may be specified from time to time by the Client.
10.4 Where the Client acts as data controller under this Contract, the Client confirms it has the necessary consents and permissions in respect of the Personal Data to enable the Agency to provide the Services and all associated activities and use the Personal Data in connection with the Contract.
10.5 The Client must ensure that is has in place appropriate technical and organisational measures to ensure that processing of Personal Data carried out by the Agency meets the requirements of the Data Protection Legislation and ensures protection of the rights of individuals under the Data Protection Legislation.
10.6 The Client shall provide the Agency when necessary, with reasonable assistance and co-operation to enable the Agency to fulfil its obligations to respond to requests from individuals exercising their rights under the Data Protection Legislation.
10.7 In the event of a breach of the Data Protection Legislation by either Party, the Agency shall provide reasonable assistance to the Client by providing information upon request to enable Client to notify data security breaches to relevant supervisory authorities and/or to affected individuals and/or to any other regulators to whom Client is required to notify any data security breaches.
11. Non-Delivery of Services
11.1 If the Agency fails to provide the Services within a reasonable time following the Commencement Date or as set out in the Quotation and/or Response other than for reasons outside the Agency’s reasonable control, non-payment of the Fees or because of delays caused by the Client:
(a) if the Agency provides the Services and delivers the Deliverables within 30 Business Days thereafter the Agency shall have no liability in respect of such late delivery; or
(b) if the Client gives written notice to the Agency within 10 Business Days after the delivery date set out in the Quotation and/or Response and the Agency fails to provide the Services or deliver the Deliverables within 30 Business Days after receiving such notice the Client may cancel the Quotation and/or Response and the Agency’s liability shall be limited to the excess (if any) of the cost to the Client (in the cheapest available market) of similar services to those not delivered or provided over the Fee of the Services not delivered or provided.
12.1 Without affecting any other right or remedy available to it, the Agency may terminate the Contract with immediate effect by giving written notice to the Client if:
(a) the Client commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 Business Days of being notified in writing to do so;
(b) the Client 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), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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 or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Client suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
(d) the Client’s financial position deteriorates to such an extent that in the Agency opinion the Client’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;
(e) the Client fails to pay any amount due under the Contract on the due date for payment; or
(f) there is a change of Control of the Client.
12.2 Without affecting any other right or remedy available to it, the Agency shall have the right to suspend the supply of Services immediately under the Contract or any other contract between the Client and the Agency if:
(a) the Client fails to pay any amount due under the Contract on the agreed due date for payment;
(b) the Client becomes subject to any of the events listed in Clauses 12.1(c) or 12.1(d), or the Agency reasonably believes that the Client is about to become subject to any of them; and
(c) the Agency reasonably believes that the Client is about to become subject to any of the events listed in Clauses 12.1(c) or 12.1(d).
13. Consequences of termination
13.1 On termination or expiry of the Contract:
(a) the Client shall immediately pay to the Agency all of the Agency’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Agency shall submit an invoice, which shall be payable by the Client immediately on receipt;
(b) the Client shall return to the Agency any Deliverables which have not been fully paid for. If the Client fails to do so, then the Agency may enter the Client’s premises and take possession of them. Until the Deliverables have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with fulfilling its obligations in this Clause 13.
13.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
13.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
14. Ability to Perform
The Agency shall ensure that it has and maintains all licences, permissions and consents necessary to carry out its obligations under this Contract including securing any work permits required for its employees.
15.1 The Agency may at any time assign, sub-contract, sub-licence, delegate or deal in any other manner with any of its rights and obligations under the Contract without requiring the prior written consent of the Client.
15.2 The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Agency.
16. Client’s Default
16.1 If the Client fails to make full payment of the Fees when due and by no later than the intended Commencement Date of the Services then, without prejudice to any other right or remedy available to the Agency, the Agency shall be entitled to:
(a) cancel the Quotation and/or Response or suspend immediately any further provision of Services and delivery of the Deliverables to the Client;
(b) appropriate any payment made by the Client to such of the Services (or the services supplied under any other contract between the Client and the Agency) as the Agency may think fit (notwithstanding any purported appropriation by the Client); and
(c) charge the Client interest in accordance with Clause 6.5.
16.2 The Agency rights in Clause 16.1 also applies if:
(a) the Client becomes subject to an administration order or enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986 or the Insolvent Partnerships Order 1994 (as amended) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation;
(b) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Client; or
(c) the Client ceases, or threatens to cease, to carry on business.
17.1 The Agency will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under express terms of the Contract (or these Terms and Conditions), be liable for any loss of profit or any indirect, special or consequential loss, (whether caused by the Agency’s servants or agents or otherwise) which arise out of or in connection with the supply of the Services.
17.2 The Client shall indemnify the Agency from and against all costs, expenses (including legal and other professional fees and expenses), losses, damages and other liabilities of whatever nature (whether contractual, tortious or otherwise) suffered or incurred by the Agency and arising out of or in connection with
(a) loss or damage to any equipment (including that of third parties) caused by the Client, its agents or employees;
(b) any possession, use and/or application of the Client Materials; or
(c) any breach by the Agency or any sub-contractors of Clause 10.
17.3 Where the Client consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Client shall be joint and several obligations of such persons.
17.4 The Agency shall not be liable to the Client or be deemed to be in breach of these Terms and Conditions by reason of any delay in performing, or any failure to perform, any of the Agency’s obligations if the delay or failure was due to non-payment of the Fees in full by the Client or any cause beyond the Agency’s reasonable control.
17.5 No Party excludes or limits its liability under these Terms and Conditions for:
(a) death or personal injury caused by its negligence;
(b) fraudulent misrepresentation; or
(c) any other type of liability which cannot by law be excluded or limited.
17.6 Subject to Clause 17.5, the Agency limits its liability under these Terms and Conditions, whether such liability arises in contract, tort (including without limitation negligence) or otherwise, as follows:
(a) the maximum liability of the Agency for all claims under these Terms and Conditions shall be limited to the Fee for each claim or series of related claims and shall not in aggregate exceed the Fee; and
(b) the Agency shall not be liable for:
(i) loss of business, use, profit, anticipated profit, contracts, revenues, goodwill or anticipated savings;
(ii) loss of data or use of data;
(iii) damage to the other Party’s reputation; or
(iv) consequential, special or indirect loss or damage;
even if such Party has been advised of the possibility of such loss or damage.
18.1 Each Party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other Party, except as permitted by Clause 18.2.
18.2 Each Party may disclose the other Party’s confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the Party’s obligations under the Contract. Each Party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other Party’s confidential information comply with this Clause 18; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
18.3 Neither Party shall use the other Party’s confidential information for any purpose other than to perform its obligations under the Contract.
18.4 The Client consents to use of its name and logo by the Agency on its website and in marketing and sales literature.
19.1 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.
19.2 Notices shall be deemed to have been duly given:
(a) when delivered, if delivered by courier or other messenger (including registered mail) at the time the notice is left during the normal business hours; or
(b) if sent by pre-paid first-class post or other postal services next working day delivery service, at 9.00 am on the Business Day after posting; or
(c) when sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.
19.3 All notices under this Contract shall be addressed to the most recent address or e-mail address notified to the other Party.
20. Force Majeure
Neither Party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, pandemic, epidemic, diseases, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
The Parties agree that no failure by either Party to enforce the performance of any provision in these Terms and Conditions or under the Contract shall constitute a waiver of the right to subsequently enforce that provision or any other provision. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing 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 right or remedy.
The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions or the Contract are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (and, by extension, the Contract). The remainder of these and the Contract shall be valid and enforceable.
23. Third party rights
With the exception of any Agency Group Company and its employees, a person who is not a Party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
No variation to these Terms and Conditions shall be binding unless agreed in writing between the authorised representatives of the Client and the Agency.
25. No Partnership or Agency
Nothing in this Contract and no action taken by the Parties under this Contract shall create or be deemed to create a partnership or establish the relationship of principal and agent or any other fiduciary relationship between the Parties and no Party shall have the right to obligate or bind the other in any manner whatsoever.
26. Anti-bribery and corruption
26.1 The Client shall:
(a) comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements);
(b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(c) notify the Agency (in writing) if it becomes aware of any breach of Clause 26 or has reason to believe that it or any person associated with it has received a request or demand for any undue financial or other advantage; and
26.2 Breach of this Clause 26 shall be deemed a material breach under Clause 12.
27. Entire agreement
27.1 The Contract constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
27.2 Each Party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
28. Governing law and jurisdiction
28.1 These Terms and Conditions and the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
28.2 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.