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Terms and conditions

 

Ninetwo Design Limited Terms and Conditions of Service

These Conditions govern the provision of services undertaken for the Client by NineTwo Design Limited a company registered in Scotland with Company Registration Number SC727976 and having its registered office at First Floor, 11 Ashley Street, Charing Cross, Glasgow, Scotland, G3 6DR (henceforth “NineTwo”).  It is the Client’s responsibility to ensure that they have read and understood these Conditions and any amendments as agreed by NineTwo in the Proposal.

  • Definitions and interpretation
    • In these Conditions the following definitions apply:

“Affiliate” means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;

“Applicable Law” means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force whether local or national;

“Background Material” means any content and/or material incorporated into the Deliverables which is not Client Materials;

“Bribery Laws” means the Bribery Act 2010 and all Applicable Laws in connection with bribery or anti-corruption;

“Business Day” means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in Scotland;

“Client” means the named organisation(s) or individual(s) designated as the client in the Proposal;

“Client Materials” means any content and/or material supplied by the Client for inclusion in the Deliverables, including any such material specified in the Proposal;

“Conditions” means these terms and conditions as applicable to the provision of Services from NineTwo;

“Confidential Information” means any commercial, financial or technical information, information relating to the Services, plans, the Proposal, the Fees, know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;

“Contract” means the agreement between NineTwo and the Client for the supply and purchase of Services incorporating these Conditions and the Proposal;

“Control” means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company and “Controls“, “Controlled” and “under common Control” shall be construed accordingly;

“Controller” shall have the meaning given to it in applicable Data Protection Laws from time to time;

“Data Protection Laws” means, as binding on either party or the Services:

  • the GDPR;
  • the Data Protection Act 2018;
  • any laws which implement or supplement any such laws; and
  • any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;

“Deliverables” means any materials to be provided by NineTwo, including print media, Website Production materials, graphic designs, Documentation, and any physical media or digital files containing or comprising the finished Deliverables, and including in particular any Deliverables specified in the Proposal;

“Delivery Date” means the estimated date when the final version of the Deliverables is delivered to the Client by NineTwo as set out in the Proposal;

“Documentation” means any descriptions, instructions, manuals, literature, technical details or other related materials supplied in connection with the Services;

“Fees” means fees payable by the Client for the Services priced in GBP excluding VAT. This is set out in the Proposal (subject to any Further Fees made in accordance with these Conditions where the context permits or requires);

“Force Majeure” means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including those involving NineTwo or its suppliers’ workforce, but excluding the Client’s inability to pay or circumstances resulting in the Client’s inability to pay;

“Further Fees” means the fees of NineTwo estimated in accordance with the standard rates of NineTwo in their then current form as applicable from time to time;

“GDPR” means the General Data Protection Regulation, Regulation (EU) 2016/679, as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or of a part of the United Kingdom from time to time);

“Intellectual Property Rights” means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in software, rights in Confidential Information, rights to invention, rights to sue for passing off, domain names and all other intellectual property rights and similar rights and, in each case:

  • whether registered or not;
  • including any applications to protect or register such rights;
  • including all renewals and extensions of such rights or applications;
  • whether vested, contingent or future;
  • to which the relevant party is or may be entitled, and
  • in whichever part of the world existing;

“International Organisation” shall have the meaning given to it in applicable Data Protection Laws from time to time;

“Modern Slavery Policy” means NineTwo’s anti-slavery and human trafficking policy in force and notified to the Client from time to time and available to the Client at www.ninetwo.design/modern-slavery-policy;

“NineTwo Personnel” means all employees, officers, staff, other workers, agents and consultants of NineTwo and any of their subcontractors who are engaged in the performance of the Services from time to time;

“Payment Terms” means the timescales for payment set out in the Proposal;

“Personal Data” shall have the meaning given to it in applicable Data Protection Laws from time to time;

“Personal Data Breach” shall have the meaning given to it in applicable Data Protection Laws from time to time;

“Processing” has the meaning given to it in applicable Data Protection Laws from time to time (and related expressions, including “process“, “processing“, “processed“, and “processes” shall be construed accordingly);

“Processor” shall have the meaning given to it in applicable Data Protection Laws from time to time;

“Proposal” means the specific project details expressly acknowledged by NineTwo as specifying the nature and general scope of Services to be provided;

“Protected Data” means Personal Data received from or on behalf of the Client in connection with the performance of NineTwo’s obligations under the Contract;

“Services” means the as applicable production of the Deliverables set out in the Proposal and/or the services to be performed in Website Production by NineTwo for the Client in accordance with the Contract;

“Sign-off” means the Client’s confirmation that the Deliverables have been approved as complete and final and “Signed-off” shall be construed accordingly;

“Sub-Processor” means any agent, sub-contractor or other third party (excluding its employees) engaged by NineTwo for carrying out any processing activities on behalf of the Client in respect of the Protected Data;

“Support Period” means the period specified in the Proposal during which NineTwo shall provide support services in respect of any Website Production;

“Third Party Material” means any material licensed by third parties and sourced by or on behalf of NineTwo for inclusion in the Deliverables;

“VAT” means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Services and/or Deliverables; and

“Website Production” means the creation of a website, including the production of underlying code, creation and design of webpages, creation of the structure of the website and hosting services;

  • In these Conditions, unless the context requires otherwise:
    • a reference to the Contract includes these Conditions, the Proposal, and their respective schedules, appendices and annexes (if any);
    • any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;
    • a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
    • a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
    • words in the singular include the plural and vice versa;
    • any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words; and
    • a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form.
  • Application of these conditions
    • These Conditions apply to and form part of the Contract between NineTwo and the Client. They supersede any previously issued terms and conditions of purchase or supply.
    • No variation of these Conditions or to the Proposal or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of NineTwo and the Client respectively. Where any variation to the Services provided is agreed to by NineTwo, NineTwo reserves the right to charge Further Fees to accommodate changes in the Services and any adjusted timescales or variations to Services required.
    • NineTwo shall incorporate the Client’s requirements into the Proposal but for the avoidance of doubt a Proposal shall not be accepted, and no binding obligation to supply any Services shall arise unless and until and to the extent that NineTwo incorporates the Client’s specifications into and issues the Proposal which the Client subsequently agrees to in writing as being complete.
    • Rejection by NineTwo of any request by the Client relating to aspects of the Services and/or Deliverables to form part of the Proposal, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Client.
    • NineTwo may issue quotations to the Client from time to time. Quotations are invitations to treat only. They are not an offer to supply Services and are incapable of being accepted by the Client.
    • Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Contract.
  • Project procedures
    • The parties agree to meet from time to time at such intervals as agreed between the parties to consult in good faith with each other over any creative decisions including, but not limited to, design, content and required form of the Deliverables.
    • If the Client opts to appoint a representative (the “Client Point of Contact”) they will have the authority on behalf of the Client to accept as satisfactory any works, whether in progress or forming the Deliverables. The Client Point of Contact will also be available to provide feedback on the work in progress of the project, where agreed by the parties.
    • The Client acknowledges and accepts that it shall be responsible for any Further Fees or extension in the estimated production dates provided in the Proposal arising from any directions given by the Client Point of Contact including changes to the scope of the Services, additional services, equipment and Deliverables.
    • NineTwo shall submit Deliverables as set out in the Proposal for the Client’s review and written acceptance, such review and acceptance not to be unreasonably withheld or delayed.
    • Unless stated otherwise in the Proposal, each project is budgeted with a maximum of five (5) rounds of revision factored in unless otherwise agreed with NineTwo. NineTwo shall provide the Deliverables to the Client (or Client Point of Contact, where applicable) for review.  For each round of revision, the Client shall confirm in writing that all feedback has been provided no later than three (3) Business Days after receipt of the Deliverables, at which point the relevant round of revision shall be deemed complete and any further feedback shall form part of the next round of revision.  If the Client fails to provide feedback within the timescale provided during the fifth and final revision period, the Deliverables shall be deemed Signed-off.
    • Subject to the timescale provided in clause 3.5, the Deliverables shall be complete when the Client reasonably signifies its approval of the Deliverables through Sign-off in writing. For the avoidance of doubt, NineTwo shall not be held responsible or liable for any Signed-off Deliverables where the Client has failed to unambiguously communicate their acceptance or rejection of the relevant Deliverables.
    • Any changes requested by the Client in relation to the Proposal and/or the Deliverables (after Sign-off) shall be dealt with in accordance with the following process:
      • the Client may request changes to any part or parts of the Services, including additional Services, deletions or other amendments to the Deliverables (a “Change Request”) and shall provide all such information as NineTwo may require to consider the Change Request;
      • NineTwo may, at its sole discretion, accept or reject the Client’s Change Request. If NineTwo accepts the Change Request, NineTwo shall submit to the Client written details of any additional Fees payable to action the amendments specified in the Change Request, together with details of any amendments in respect of the relevant Proposal and any estimated timescales for completion;
      • the Client shall promptly respond to NineTwo, confirming whether it accepts or rejects NineTwo’s submission, and the relevant Proposal (including any Fees and timescales provided) shall be deemed altered or not altered accordingly. If the Client does not respond within 5 Business Days, the submission shall be deemed rejected and the Deliverables shall be deemed complete and final unless NineTwo consents to accepting the Client’s response outside of this timescale; and
      • unless otherwise agreed to by NineTwo, where the Client has Signed-off on any Deliverables as being full and complete, any further Change Requests in respect of Signed-off Deliverables shall be treated as a new and separate project, and shall be subject to new Fees.
    • Service fees
      • The Fees for the Services shall be as set out in the Proposal or, where no such provision is set out, shall be calculated in accordance with NineTwo’s scale of charges in force from time to time.
      • The Fees are exclusive of VAT (or equivalent sales tax).
      • The Client shall pay any applicable VAT to NineTwo on receipt of a valid VAT invoice.
      • The Fees will be paid in accordance with the Proposal and NineTwo’s standard rates for the duration of the Services to be provided:
    • Payment
      • NineTwo shall invoice the Client for the Services, partially or in full, at any time following acceptance of the Proposal, PROVIDED THAT where any project is budgeted to cost more than £4,000, the Client acknowledges and accepts that it shall pay 50% of the total value prior to NineTwo commencing work on the project and the outstanding 50% on completion of the project.
      • NineTwo reserves the right to invoice the Client in part or in full for Services rendered where the performance or completion of the Service or any Deliverables are:
        • delayed beyond the Delivery Date due to:
          • failure by the Client to adhere to the Sign-off timescales in clause 3.5;
          • failure by the Client to communicate with NineTwo on the scope of the Services or the Deliverables to be provided;
          • any request by the Client expressly agreed to by NineTwo to extend the scope of the Services, the Deliverables to be provided, or extension of the Delivery Date, subject to Fee adjustments and Further Fees in respect of any of the preceding changes; or
        • cancelled by the Client.
      • The Client shall pay all invoices:
        • in full without deduction or set-off, in accordance with the Payment Terms of the Proposal, or where no such terms are specified in cleared funds within 30 days of the date of each invoice; and
        • to the bank account nominated by NineTwo as stated in the Proposal.
      • The Client shall pay the total Fees, including any additional fees incurred during performance of the Services and not specifically accounted for in the Proposal prior to delivery of the Deliverables PROVIDED THAT NineTwo may at its sole and absolute discretion choose to deliver Deliverables prior to full and final payment of Fees and subject to full and final payment at a later time.
      • NineTwo will retain full title to all Deliverables and Intellectual Property Rights produced in the course of providing the Services (insofar as full title to any Deliverables or Intellectual Property Rights vests in NineTwo and is to be assigned or licensed to the Client in accordance with clause 7) until full and final payment of all Fees payable under the Contract.
      • Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:
        • NineTwo may, without limiting its other rights, charge interest on such sums at 4% a year above the base rate of Bank of Scotland from time to time in force, and
        • interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgement.
      • If the Client fails to make any payments when due under the Contract, NineTwo will have the right (in addition to any other available rights and remedies) to:
        • suspend performance of the Services until payment is received; and
        • in the case of Website Production and subject to payment of the relevant invoice(s) for completion and/or hosting of the website, NineTwo reserves the right to suspend hosting services and/or access to the website and charge Further Fees for reinstating such services and/or access.
      • Website maintenance shall be invoiced annually and paid within 30 days of delivery of a valid invoice.
    • Performance
      • The Services shall be deemed performed on completion of the performance of the Services as specified in the Proposal.
      • NineTwo may perform the Services in instalments. Any delay or defect in an instalment shall not entitle the Client to cancel any other instalment.
      • Time of performance of the Services is not of the essence. NineTwo shall use reasonable endeavours to meet estimated dates for performance (including but not limited to the Delivery Date), but any such dates are indicative only. NineTwo shall not be liable for any claims, loss or damage arising, whether directly or indirectly, out of or in connection with any failure to meet estimated dates for production of the Deliverables or completion of a project.
      • NineTwo shall not be liable for any delay in or failure of performance caused by:
        • the Client’s failure to prepare the Client Materials as required for the performance of the Services;
        • the Client’s failure to provide NineTwo with adequate instructions for performance or otherwise relating to the Services;
        • the failure of any third party (excluding NineTwo Personnel) involved in the delivery of the Services; or
        • Force Majeure.
      • Website Production services shall include support in respect of minor technical issues, bugs, glitches or other minor functional errors of the website for the Support Period. For the avoidance of doubt, the services provided during the Support Period do not extend to amending the Deliverables used in any website in respect of any aesthetic or design preferences of the Client where the Deliverables have been Signed-off.
    • Intellectual Property Rights
      • Subject to clause 2, and additionally subject to and with effect from payment by the Client in full of the Fees and any Further Fees, and subject to clause 7.2, NineTwo assigns to the Client all of NineTwo’s rights to the Deliverables on the terms set out in the Proposal throughout the world in all media whether now known or hereafter developed to the extent necessary to fulfil the purposes of the Deliverables as specified in the Proposal;
      • The assignation in clause 1 will not apply to any Background Material, Third Party Material or underlying computer code where Website Production is concerned. Background Material and computer code in Website Production will remain the property of NineTwo or its subcontractor (as applicable) and Third Party Material will remain the property of the applicable third party licensor. NineTwo licenses the Background Material and sub-licenses the Third Party Material to the Client solely to the extent necessary to use the Deliverables only for the purpose provided in the Proposal. The Client will not make any use of Background Material or Third Party Material other than within the Deliverables without the prior written consent of NineTwo.
      • NineTwo will, at the Client’s expense, execute and deliver such documents and perform such acts as may be necessary for the purpose of giving full effect to clause 1, and will use reasonable commercial endeavours to procure that any third parties will also do so as necessary.
      • NineTwo hereby asserts its right to be identified as the author of any Deliverables which are not excluded from this right under the Copyright, Designs and Patents Act 1988.
      • The Client undertakes that the Deliverables or any other work provided by NineTwo shall not be subjected to derogatory treatment, significant distortion, mutilation, or alteration of the Deliverables that could damage the goodwill or reputation of NineTwo.
      • Clause 4 and 7.5 will survive expiry or termination of this agreement.
      • The Client grants NineTwo a non-exclusive licence to use the Client’s name and Intellectual Property Rights to the extent necessary for the purpose of providing the Services, referring to them in paperwork and in discussions with third parties in order to indicate the nature of the Deliverables, and including the Deliverables in NineTwo’s own promotional materials and its portfolio of work. The Client warrants that no such use will infringe the Intellectual Property Rights of any third party.
      • The Client grants to NineTwo a non-exclusive, perpetual, irrevocable licence to use the Deliverables for promotional use by NineTwo in internal and client and prospective client presentations and on NineTwo’s websites, digital platforms and social media platforms from time to time. The Client will have the right to request that the Deliverables (or extracts or any one or more of them) be removed and no longer used by NineTwo if the Client reasonably considers that such use is detrimental to the Client’s reputation or its commercial interests, but for the avoidance of doubt NineTwo is under no obligation to agree to such a request.
    • Warranty
      • NineTwo warrants that at the time of performance:
        • it is fully entitled to enter into and perform this Contract;
        • to the extent that the performance of the Services or production of any Deliverables incorporates Background Material or Third Party Material, these shall not infringe the Intellectual Property Rights of any third party subject to any licence terms notified to the Client;
        • the Services shall be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II s13; and
        • in the case of media on which the Deliverables are to be supplied, these shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
      • The Client warrants that:
        • it is fully entitled to enter into and perform this Agreement;
        • it has provided NineTwo with all relevant, full and accurate information as to the Client’s business and needs to enable NineTwo to adequately perform the Services;
        • it will not do or permit to be done anything which may reasonably be interpreted by NineTwo in any way as being prejudicial, detrimental or denigrating to NineTwo’s brand or business; and
        • it owns or has the necessary rights, licences or permissions to provide NineTwo all Client Materials to be used in the production of any Deliverables or in the performance of the Services generally;
        • it has obtained the necessary consents, licences and permissions to allow NineTwo to access upon and perform the Services at the location(s) and/or premises that the Client has designated in the Proposal; and
        • it has obtained the necessary consents and licences to record such personnel as the Client has designated in the Proposal as being necessary for NineTwo to perform any aspect of the Services or for the creation of any of the Deliverables.
      • The provisions of these Conditions shall apply to any Services that are remedied or re-performed with effect from performance of the remedied or re-performed Services.
      • Except as set out in this clause 8:
        • NineTwo gives no warranties and makes no representations in relation to the Services; and
        • shall have no liability for its failure to comply with the warranty in clause 1,

and all warranties and conditions, whether expressed or implied by statute, common law or otherwise are excluded to the extent permitted by law.

  • Anti-slavery and Anti-bribery
    • NineTwo shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy.
    • For the purposes of this clause 9 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.
    • Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and ensure that:
      • all of that party’s personnel;
      • all others associated with that party; and
      • all of that party’s sub-contractors;

involved in performing the Contract so comply.

  • Without limitation to clause 3, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
  • Indemnity
    • NineTwo shall indemnify and keep indemnified the Client against actions, costs, demands, losses, claims and expenses of whatsoever kind or nature arising from any claim by a third party against the Client arising from a breach by NineTwo of clause 1.2.
    • The Client shall indemnify, and keep indemnified, NineTwo from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by NineTwo as a result of or in connection with the Client’s breach of any of the Client’s obligations under the Contract.
    • In the event of a third party action giving rise to a claim under clause 1 or 10.2, the party claiming the indemnity shall:
      • promptly notify the other party of the claim;
      • grant to the indemnifying party the sole right to defend, control, settle or otherwise deal with the claim; and
      • not make any admissions, concessions or settlements in respect of the claim other than with the prior written consent of the indemnifying party, such consent to not be unreasonably withheld or delayed.
    • Limitation of liability
      • The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 11.
      • Subject to clauses 5 and 11.6 and not excluding the Client’s payment obligations under these Conditions, NineTwo’s total liability shall not exceed the sum of the Fees.
      • Subject to clauses 5 and 11.6, neither party shall not be liable for consequential, indirect or special losses, damage, costs, expenses or other claims whatsoever.
      • Subject to clauses 5 and 11.6, NineTwo shall not be liable for any of the following (whether direct or indirect):
        • loss of profit;
        • loss of revenue;
        • loss or damage to equipment;
        • loss of use;
        • loss of production;
        • loss of contract;
        • loss of commercial opportunity; and/or
        • harm to reputation or loss of goodwill;
      • The limitations of liability set out in clauses 2 to 11.4 shall not apply in respect of any indemnities given by either party under the Contract.
      • Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
        • death or personal injury caused by negligence;
        • fraud or fraudulent misrepresentation;
        • any other losses which cannot be excluded or limited by Applicable Law; or
        • any losses caused by wilful misconduct.
      • Confidentiality
        • Each party undertakes to the other to keep confidential the Confidential Information of the other party that it will have obtained or received as a result of the discussion leading up to the entering into or the performance of this Contract. The provisions of this clause shall not apply to:
          • any information which was in the public domain at the date of the Contract;
          • any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
          • any information which is independently developed by one party without using information supplied by the other; or
          • any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract,

except that the provisions of clauses 12.1.1 to 12.1.3 shall not apply to information to which clause 13.4 relates.

  • This clause shall remain in force three years after termination of the Contract.
  • To the extent any Confidential Information is Protected Data (as defined in clause 13) such Confidential Information may be disclosed or used only to the extent such disclosure or use is in compliance with and does not conflict with any of the provisions of clause 1.
  • Processing of personal data
    • The parties agree that the Client is a Controller and that NineTwo is a Processor for the purposes of processing Protected Data pursuant to the Contract. The Client shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Client shall ensure all instructions given by it to NineTwo in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with all Data Protection Laws. Nothing in the Contract relieves the Client of any responsibilities or liabilities under any Data Protection Laws.
    • NineTwo shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of the Contract.
    • The parties agree:
      • NineTwo shall only process (and shall ensure NineTwo Personnel only process) the Protected Data in accordance the Contract except to the extent:
        • that alternative processing instructions are agreed between the parties in writing; or
        • otherwise required by Applicable Law (and shall inform the Client of that legal requirement before processing, unless Applicable Law prevents it doing so on important grounds of public interest); and
      • If NineTwo believes that any instruction received by it from the Client is likely to infringe the Data Protection Laws it shall promptly inform the Client and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions that are not infringing. The Fees payable to NineTwo shall not be discounted or set-off as a result of any delay or non-performance of any obligation in accordance with this clause 3.2.
    • NineTwo shall implement and maintain appropriate technical and organisational measures to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.
    • NineTwo shall:
      • not permit any processing of Protected Data by any Sub-Processor without the prior specific written authorisation of the Client;
      • prior to any Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint such Sub-Processor under a written contract containing materially the same obligations as under this clause 13 (including those relating to sufficient guarantees to implement appropriate technical and organisational measures) that is enforceable by NineTwo and ensure such Sub-Processor complies with all such obligations;
      • remain fully liable to the Client under the Contract for all the acts and omissions of each Sub-Processor as if they were its own; and
      • ensure that all persons authorised by NineTwo or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.
    • NineTwo shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to any country or territory outside the United Kingdom or to any International Organisation without the prior written authorisation of the Client.
    • NineTwo shall notify the Client without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Protected Data.
    • On the end of the provision of the Services relating to the processing of Protected Data, at the Client’s cost and option, NineTwo shall either return all of the Protected Data to the Client or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any Applicable Law requires NineTwo to store such Protected Data. This clause 13 shall survive termination or expiry of the Contract.
  • Force Majeure

Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such the event causes a delay or failure in performance and when it ceases to do so. If the Force Majeure event continues for a continuous period of more than 30 days, either party may terminate the Contract by written notice to the other party.

  • Termination
    • Either party may terminate the Contract at any time by giving notice in writing to the other party if:
      • the other party commits a material breach of Contract and such breach is not remediable; or
      • the other party commits a material breach of the Contract which is capable of being remedied and such breach is not remedied within 14 days of receiving written notice of such breach.
    • NineTwo may terminate the Contract at any time by giving notice in writing to the Client if:
      • the Client has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within 30 days after NineTwo has given notification that the payment is overdue;
      • in the reasonable opinion of NineTwo, the Client has unnecessarily delayed the performance of the Services or its obligations under the Contract by failing to effectively communicate with NineTwo or any NineTwo Personnel, PROVIDED THAT NineTwo writes to the Client no later than 30 days prior to termination to give notice of its intention to do so;
      • the Client stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
      • the Client is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if NineTwo reasonably believes that to be the case;
      • the Client becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
      • the Client becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;
      • the Client becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;
      • the Client has a resolution passed for its winding up;
      • the Client has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
      • the Client suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
      • the Client has a freezing order made against it;
      • the Client or any Affiliate becomes subject to any sanction, prohibition or restriction under United Nations resolutions or the trade or economic sanctions of the European Union, United Kingdom, Hong Kong or the United States of America.
      • the Client is subject to any events or circumstances analogous to those in clauses 2.3 to 15.2.11 in any jurisdiction.
    • The right of NineTwo to terminate the Contract pursuant to clause 2 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to the Contract.
    • If the Client becomes aware that any event has occurred, or circumstances exist, which may entitle NineTwo to terminate the Contract under this clause 15, it shall immediately notify NineTwo in writing.
    • Termination or expiry of the Contract shall not affect any accrued rights and liabilities of NineTwo at any time up to the date of termination.
  • Notices
    • Any notice or other communication given by a party under these Conditions shall:
      • be in writing and in English; and
      • be sent to the relevant party at the email or postal address set out in the Contract.
    • Notices may be given, and are deemed received:
      • by hand: on receipt of a signature at the time of delivery;
      • by Royal Mail Recorded Signed For post: at 9.00 am on the second Business Day after posting;
      • by email: on receipt of a delivery receipt email from the correct address.
    • Notices under the Contract shall be sent to:
      • in the case of NineTwo:

By post to:

FAO: Jonathan Thomson

NineTwo Design Limited

First Floor

11 Ashley Street

Charing Cross

Glasgow

Scotland

G3 6DR

By email to: info@ninetwo.design

  • in the case of the Client, to the address and/or email address provided in the Proposal.
  • This clause 16 does not apply to notices given in legal proceedings or arbitration.
  • Cumulative remedies

The rights and remedies provided in the Contract for NineTwo are cumulative and not exclusive of any rights and remedies provided by law.

  • Entire agreement
    • The parties agree that the Contract constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
    • Each party acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
    • Nothing in these Conditions purports to limit or exclude any liability for fraud.
  • Assignation
    • Neither party may assign or encumber any right or obligation under the Contract, in whole or in part, without the other party’s prior written consent, such consent not to be unreasonably withheld or delayed.
    • Notwithstanding clause 1, NineTwo may subcontract all or part of its duties and obligations under the Contract provided that it will remain liable to the Client for all acts and/or omissions of such subcontractors as if such act or omission had been committed or omitted by NineTwo itself.
  • Set off
    • NineTwo shall be entitled to set-off under the Contract any liability that it has or any sums which it owes to the Client under the Contract.
    • The Client shall pay all sums that it owes to NineTwo under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
  • Severance
    • If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
    • If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with the minimum such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
  • Waiver
    • No failure, delay or omission by NineTwo in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
    • No single or partial exercise of any right, power or remedy provided by law or under the Contract by NineTwo shall prevent any future exercise of it or the exercise of any other right, power or remedy by NineTwo.
    • A waiver of any term, provision, condition or breach of the Contract by NineTwo shall only be effective if given in writing and signed by NineTwo, and then only in the instance and for the purpose for which it is given.
  • Conflicts within contract

If there is a conflict between the terms contained in the Conditions and the terms of the Proposal to the Contract, the terms of the Proposal shall prevail to the extent of the conflict.

  • Costs and expenses

The Client shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (if any) (and any documents referred to in it).

  • Third party rights

A person who is not a party to the Contract shall not have any rights under the Contract (Third Party Rights) (Scotland) Act 2017 to enforce any of the provisions of the Contract.

  • Dispute resolution
    • Any dispute arising between the parties out of or in connection with the Contract shall be dealt with in accordance with the provisions of this clause 26.
    • The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.
    • The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedure:
      • Within 14 Business Days of service of the notice, the designated points of contact of each of the parties shall meet to discuss the dispute and attempt to resolve it.
      • If the dispute has not been resolved within 14 Business Days of the first meeting of the designated points of contact, then the matter shall be referred to a Director (or persons of equivalent seniority) of the parties and such representatives may resolve the matter through mediation using a mediator who shall be appointed as agreed between the parties. The costs of mediation shall be borne equally between the parties, failing which such costs shall be borne between the parties as designated by the mediator.
      • Until the parties have completed the steps in clauses 3.1 and 26.3.2 and the dispute has not been resolved, only then shall it be open to each of the parties to seek its legal remedies under the Contract.
    • This clause 26 will not restrict either party from seeking immediate legal or equitable relief for any infringement of its Intellectual Property Rights, or for payment of any amount of money not subject to a genuine, good faith dispute.
  • Jurisdiction and governing law
    • The parties irrevocably agree that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims), except that (for the exclusive benefit of NineTwo) NineTwo retains the right to bring proceedings against the Client in the applicable courts of the Client’s place of business.
    • The Contract and any dispute or claim arising out of, or in connection with, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of Scotland.