The following definitions and rules of interpretation apply in this Agreement:
- “Business Day” means 9:00am to 5:00pm, Monday to Friday (excluding public holidays in England and Wales).
- “Commencement Date” means the date that this Services Agreement was made, which can be found at the top of this document.
- “Complex Creative’s Team” means all directors, managers, employees, consultants, engineers and specialists, agents, and subcontractors engaged in relation to the Services.
- “Confidential Information” means any information of a confidential nature as described in clause 9.
- “Deliverables” means all documents, products, and materials developed by Complex Creative or its agents, subcontractors, consultants, or employees in relation to the Services provided in any form.
- “Document” includes (in additional to any document in writing) any drawing, plan, diagram, design, image, tape, disk, or any other device or record embodying information in any form.
- "In put Material” means all Documents, information, and materials provided by the Client, relating to the Services.
- “Invoice” means each Invoice that Complex Creative provides to the Client under this Agreement.
- “Intellectual Property Rights” or “IPR“ means patents; utility models; rights to inventions; copyright, neighbouring, and related 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 for unfair competition; rights in designs; database rights; rights to use, and to protective confidentiality of, confidential information (including know-how and trade secrets); 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 future, in any part of the world.
- “Pre-existing Materials” means all Documents, information, and materials provided by Complex Creative or its agents, subcontractors, consultants, or employees, relating to the Services, which existed prior to the Commencement Date.
- “Resold Products” has the meaning given at clause 10.6.
- “VAT” means value added tax, chargeable under the Value Added Tax Act 1994.
- “Web Hosting Account” means an account with a third party Web Hosting Service provider which is set up in the Client’s name, or on behalf of the Client.
- “Web Hosting Services” means the Web Hosting Service which is provided by a third party, with Complex Creative acting as a reseller of these Web Hosting Services.
- “Web Maintenance Services” means the Web Maintenance Service provided by Complex Creative as described at clause 3.1.7.
- References to clauses and schedules are to the clauses and schedules of this Agreement, and references to paragraphs are to the paragraphs of the relevant schedule or appendix.
- Complex Creative’s Invoices form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes Complex Creative’s Invoices.
- Clauses, and paragraph headings shall not affect the interpretation of this Agreement.
- Unless the context otherwise requires, words in the singular shall include the plural, and words in the plural shall include the singular.
- Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
- 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 or following those terms.
- A reference to “writing” or “written” includes e-mail, text message, and WhatsApp.
- A reference to a person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).
- A reference to a party shall include that party’s personal representatives, successors, and permitted assigns.
- A reference to a company shall include any company, corporation, or other corporate body, wherever and however incorporated or established.
- A reference to a holding company or a subsidiary means a holding company or subsidiary as defined in section 1159 of the Companies Act 2006, and a company shall be treated for the purposes only of the membership requirement contained in section 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person, by way of security or in connection with the taking of security, or (b) its nominee.
- A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
- Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
- The following definitions and rules of interpretation apply in this Agreement:
COMMENCEMENT AND DURATION
- Complex Creative shall provide the Services to the Client under the terms and conditions of this Agreement.
- The Services that Complex Creative provide under this agreement are provided in Complex Creative’s capacity as a reseller of Web Hosting Services and the management of any related web hosting account.
- Complex Creative shall provide the Services from the Commencement Date and shall continue to provide the Services throughout the term.
This Agreement shall commence on the Commencement Date and continue for a period (as agreed in writing with Complex Creative) of either:
- 12 months, and after that shall continue to be supplied for 12 monthly periods unless the Agreement is terminated by one of the parties giving the other 1 month notice in writing (unless this Agreement is terminated in accordance with clause 11); OR
1 month rolling contract which may be terminated by one of the parties giving no less than 1 month notice in writing (unless this Agreement is terminated in accordance with clause 11).
- Where a monthly rolling contract is offered by Complex Creative to the Client, the Client must pay by monthly direct debit via GoCardless.
COMPLEX CREATIVE’S RESPONSIBILITES
Complex Creative shall:
- Provide the Services to the Client in accordance with this Agreementand shall allocate sufficient resources to the Services to enable it to comply with this obligation.
- Time shall not be of the essence to this contract unless specifically agreed in writing by Complex Creative.
- Co-operate with the Client in all matters relating to the Services.
- Provide all equipment, tools, or other items required to provide the Services.
- Comply with all applicable laws and regulations relating to the provision of the Services.
- Ensure Complex Creative’s Team use reasonable skill and care in the performance of the Services.
- Where the Client opts for our website maintenance Services, we shall provide management of the Web Hosting Accounting, which shall include upgrading software, and doing security patches when required. Clients will have full access to any Web Hosting Account. We will also provide support with hosting features, such as (with limitation), creating FTP accounts, and new email addresses.
Complex Creative acknowledges and agrees that:
- The Client is entering into this Agreement on the basis of the description of Services as detailed in Complex Creative’s Invoice.
If Complex Creative considers that the Client is not (or may not be) complying with any of the Client’s obligations, it shall only be entitled to rely on this as relieving Complex Creative’s performance under this
- To the extent that it restricts or precludes performance of the Services by Complex Creative; and
- If Complex Creative, promptly after the actual or potential non-compliance has come to its attention, has notified details to the Client in writing.
- Complex Creative will monitor the provision of the Services using their own monitoring tools. Complex Creative will only rely on their own monitoring tools to assess the performance of the Services and will not consider or accept any results, reports, or data from the Client’s own monitoring tools in relation to the Services.
- Except as specifically stated in this Agreement, Complex Creative shall not be responsible for providing or achieving any particular results or outcomes within a particular timeframe.
- Where necessary, Complex Creative may need to access material that you upload (or permit to be uploaded) onto the servers as part of Complex Creative’s provision of the Services, including (without limitation) any and all materials, works of authorship, software, files, multimedia and audio-visual material, tools, processes, systems, manuals, databases, database structures, a website’s “look and feel”, content, documents, records, reports, ideas, know-how, information, text, data, diagrams, artwork, screenshots, drawings, plans, descriptions, specifications, images, graphics, domain names and marks (in whatever form and on whatever media) (“Materials”). You acknowledge that we may make such access without informing you.
- Complex Creative shall:
The Client Shall:
- Co-operate with Complex Creative in all matters relating to the Services and appoint as it thinks fit, a Client’s manager in relation to the Services, who shall have the authority contractually to bind the Client on matters relating to the Services; andProvide such information as Complex Creative may reasonably request and the Client considers reasonably necessary, in order to carry out the Services in a timely manner and to ensure that it is accurate in all material respects.Only submit to Complex Creative, or the website, information (whether material, contact details, or otherwise, without limitation) which is accurate and not misleading and the Client must keep this information up to date and inform Complex Creative of any changes.
- Use their own login details for the website and not impersonate any other person or adopt a false identity.
- Keep their password strictly confidential and secure, and immediately change their password if the Client knows or suspect that any unauthorised third party becomes aware of the Client’s password, or if they become aware of unauthorised use of the password, or any other breach of security is known or suspected by the Client.
You, the Client, acknowledge and agree:
- Complex Creative is a facilitator of third-party Web Hosting Services. As such, Complex Creative cannot guarantee that the Web Hosting Service will always be available or be uninterrupted. Although it is extremely unlikely to occur, The Web Hosting Service supplier may suspend, withdraw, or restrict the availability of all or any part of the Service for business and operational reasons. Complex Creative will try to give you reasonable notice of any suspension or withdrawal but accept no responsibility for any suspension, withdrawal, or restriction that is out of Complex Creative’s direct control.
- If the Client takes out a hosting package with Complex Creative for a website that has been designed and / or developed by Complex Creative, but fails to make any payment under this (or any other) Agreement relating to the Website Hosting Services or any other Services, Complex Creative shall be entitled to take down the website until full payment of Complex Creative’s fees have been paid by the Client.
- All servers used in the provision of the Services (including virtual private services (VPS servers) and physical private servers (dedicated servers) may be accessible to all users of he internet. Complex Creative does not make any guarantee as to the protection or security of any information held on servers.
Complex Creative may from time to time without prior notice and without the need for prior agreement:
- Move the hosting of the Services (and any other Materials) to such servers as Complex Creative considers appropriate, at Complex Creative’s absolute discretion.
The Client shall be responsible for, and hereby warrants and undertakes to Complex Creative that the use of any Materials:
- Does not infringe the privacy rights or Intellectual Property Rights of any third party;
- Does not harm Complex Creative or bring their name into disrepute;
- Is not for the purposes of sending spam or other unsolicited emails;
- Is not for the purpose of breaching or circumventing the security of any network or internet user;Does not interfere with another user’s use of the Services or similar services;
- Is not defamatory, obscene, abusive, malicious, indecent, harassing, or discriminatory;
- Conforms in all respects with all applicable laws, rules, regulations, bye-laws, and codes of practice (including disability discrimination, intellectual property, privacy and data protection laws);
- Does not contain any material that is detrimental to us or any other user of the Services or similar services, including (without limitation) any viruses, trap doors, back doors, Trojan horses, time bombs, easter eggs, worms, cancelbots, or other computer programming routines that are intended to detrimentally interfere with, damage, expropriate, or surreptitiously intercept any system, data, or personal information;
- Does not permit self-storage backups, or the storage of media content such as (without limitation) video, gaming, etc;
- Does not permit storage of archive files, such as .zip or .tar.gz. It is within Complex Creative’s (or a third party Web Hosting Service provider’s) discretion during maintenance to remove these files.
- Does not permit the usage of teamspeak, or any other services making use of the hosting account solely for the purpose of gaming, chatbots, or chatrooms.
- The Client must not, or allow, any orders or transactions to be manipulated in any way that is unfair to Complex Creative, or any users of the website.
- The Client must not use or access the website in any way that is in contravention of any applicable law.
- Unless the Client has opted for our Wordpress Maintenance package and we have expressly included backups in our Service, the Client is wholly responsible for keeping regular and full backups of all Material. Complex Creative shall have no liability for any failure by the Client to backup any Material. If any material is lost or corrupted for any reason and you do not have an appropriate backup, we will not be able to help you recover that lost or corrupted Material. Please also see clause 11 (limitation of liability).
- Accounts are excluded from any backup schedule on the basis that they exceed 3GB in storage space.
- It is the responsibility of the Client to ensure adequate insurance is in place in relation to the Material, including in relation to the loss or corruption of Material.
- The Client agrees that the Services and any Material may not be used for the purpose of data warehousing such as (but not limited to) storage of backup or archival data, mirror sites, or personal multimedia content such as movies, music, photos or other media.
Complex Creative and the third-party Web Hosting Service provider monitor the use of Services. If we consider that, for example, your use of the Services (for example, your mailboxes, disc space usage, or CPU) is excessive,
we reserve the right to:
- Contact you requiring you to reduce that usage; and/or
- In respect of mailboxes, empty your spam/junk/deleted items folder, provided Complex Creative inform you of this.
- The Client acknowledges that the Services and any Material may not be used for the purpose of peer-to-peer file or media sharing, streaming, BitTorrent, Tor, or other similar forms of data transmission.
- The Client acknowledges that the Service and any Material may not be used for the purpose of providing or participating in a content delivery network.
- Complex Creative reserved the right to suspend provision of the Services to you if your use of the Services causes, or is likely to cause, detrimental impact on our other customers. This may happen if your website (for example):
- Contains malware;
- Is attacked (including by a denial of service attack); and / or
- Is badly coded.
- Complex Creative reserve the right, and have absolute discretion (but not an obligation), to remove, screen or edit any content (including Material) that breaches this Agreement or is otherwise objectionable. Without prejudice to any other provision of this Agreement, we reserve the right to immediately remove any Material to which we object and / or if you are otherwise making inappropriate use of the Services contrary to the requirements of this Agreement.
In all of the above examples, your website might use excessive resource on the servers to the detriment of other customers’ use of the Services.
- The Client Shall:
- Complex Creative may also offer WordPress website maintenance and updates at £95 per month. This is not included in our standard Website Hosting Packages, but is an add-on which the Client must opt in to receive.
- This shall include general maintenance of the WordPress website including (with limitation) monthly backups and security updates.
This does not include, for example (without limitation):
- Any new pages or content.
If the Client’s website becomes infected with any virus or malware (or any other file which has the potential to cause loss or corruption of data), Complex Creative shall reserve the right to suspend Services temporarily and
issue a warning to the Client that the malicious files must be cleared out so that they do not infect other sites on the server.
- Complex Creative can also provide this service (clearing up of Malicious files) for a fixed fee of £295.
- If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other, in writing.
If either party has made any request to make a change to the scope or execution of the Services, Complex Creative shall, within a reasonable time, provide a written estimate to the Client of:
- The likely time required to implement the change.
- Any necessary variations to Complex Creative’s charges arising from the change.
- Any other impact of the change on this Agreement.
- Unless both parties consent to a proposed change, there shall be no change to this Agreement.
- If both parties consent to a proposed change, the change shall be made only after the agreement of the necessary variations to Complex Creative’s charges, the Services, and any other relevant terms of this Agreement has been varied in accordance with clause 16.
- If Complex Creative requests a change to the scope or execution of the Services in order to comply with any applicable safety or statutory requirements, and such changes do not materially affect the nature or scope of, or the charges for the Services, the Client shall not unreasonably withhold or delay consent to it. Unless Complex Creative‘s request was attributable to the Client’s non-compliance with the Client’s obligations, neither Complex Creative’s charges nor any other terms of this Agreement shall vary as a result of such change.
CHARGES AND PAYMENT
- In consideration of the provision of the Services by Complex Creative, the Client shall pay the charges as set out on their Invoice and in accordance with this clause 7. The charges shall be paid in Great British Pounds, unless otherwise agreed in writing by Complex Creative.
The price of Complex Creative’s Website Hosting Service is £9.99 per month.
- For up to three websites the price is £19.99 per month.
- For up to 10 websites the price is £49.99 per month.
The price of Complex Creative’s Wordpress Maintenance Service is £95.00 per month.
- An additional maintenance package can be added for a second website at 30% off our listing price.
- Any subsequent maintenance packages required for a third or subsequent website can be added at 50% off our listing price.
- Payment must be made to an account which will be nominated by Complex Creative in writing.
- Payment must be made by monthly direct debit with GoCardless, otherwise payment of the annual fee will be taken upfront in advance of receipt of services.
- The charges and payments by the Client exclude VAT, which Complex Creative shall add to its Invoices at the appropriate rate.
- The Client shall pay each Invoice which is properly due and submitted to it, by Complex Creative.
- If a party fails to make any payment due to the other party under this Agreement, by the due date for payment, then, without limiting the other party’s remedies under clause 18, the defaulting party shall pay interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate. Such interest shall accrue on a daily basis, from the due date until actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount.
Complex Creative shall also charge an administration fee for additional work carried out if any payment under the Agreement is not paid on time. The applicable administration fee is as follows:
- £50.00 for a letter before action.
- £150 if the matter is sent to a debt collection agency.
- £250 if Complex Creative have to submit the case as a small claim.
- In relation to payments disputed in good faith, interest under clause 6.6 is payable only after the dispute is resolved, on sums found or agreed to be due, from the due date until payment.
- As the Web Hosting Services are provided by a third party, failure to make payment on time may result in loss of hosting (permanently or temporarily) with the Web Hosting Service supplier.
- The parties agree that Complex Creative may review and increase the charges, provided that such charges will not be increased more than 1 time in any 12-month period. Complex Creative will give the Client not less than 1 month notice of any increase. If such increase is not acceptable to the Client, it may terminate this Agreement by giving 1 month notice to Complex Creative.
QUALITY OF SERVICES
Complex Creative warrants to the Client that:
- They will perform the Services with reasonable care and skill, and in accordance with generally recognised commercial practices and standards in the industry for similar services.
- The Services will materially conform with all descriptions provided to the Client by Complex Creative, including any relevant description found on our Invoice.
- The Services will be provided in accordance with all applicable legislation from time to time in force, and Complex Creative will inform the Client as soon as it becomes aware of any changes in that legislation.
- The Client’s rights under this Agreement are in addition to the statutory terms implied in favour of the Client by the Supply of Goods and Services Act 1982 and any other statute.
- The provision of this clause 8 shall survive any performance, acceptance, or payment pursuant to this Agreement and shall extend to any substituted or remedial services provided by Complex Creative.
- Complex Creative warrants to the Client that:
INTELLECTUAL PROPERTY RIGHTS
- Complex Creative shall own all Intellectual Property Rights in existence at the Commencement Date, as well as all Intellectual Property Rights which are created in the provision of the Services.
In relation to any claim (including threats) or dispute brought to the Client’s attention, the Client shall:
- Upon becoming aware, notify Complex Creative of such a claim (including threats) or dispute.
- Allow Complex Creative to conduct all negotiations and proceedings to settle the IPRs claim.
- Provide Complex Creative with reasonable assistance regarding the IPRs claim.
- Not, without prior consultation with Complex Creative, make any admission in relation to the IPRs claim or attempt to settle it, provided that Complex Creative considers and defends any IPR using competent counsel, and in such a way as not to bring the reputation of the Client into disrepute.
- Both parties undertake that each shall not, at any time during this Agreement, and for a period of 5 years after termination of this Agreement, disclose to any person any In-put Material (in the case of Complex Creative), or Pre-existing Material (in the case of the Client), and technical or commercial know-how, specifications, inventions, processes, or initiatives which are of a confidential nature, or any other confidential information concerning the disclosing party’s business or its products which the receiving party may obtain in connection with entering into this Agreement, except as permitted by clause 10.2.
Both parties may disclose Confidential Information:
- To its employees, agents, consultants, or subcontractors (and in the case of Complex Creative, Complex Creative’s Team) as is needed for the purpose of discharging its obligations under this Agreement. The party in receipt of such information shall ensure that its employees, agents, consultants, or subcontractors to whom it discloses the Confidential Information, comply with this clause 10.
- As may be required by law, a court of competent jurisdiction, or any governmental or regulatory authority.
- Neither party shall use the other party’s Confidential Information for any purpose other than to perform its obligations under this Agreement.
- All materials, equipment and tools, drawings, specifications, and data supplied by one party to the other, shall at all times be (and remain) the exclusive property of the party supplying such materials, equipment and tools, drawings, specifications, and data, but shall be held by the receiving party in safe custody at its own risk, and maintained and kept in good condition by that party until returned to the supplying party, and shall not be disposed of or used, other than in accordance with any written instruction or authorisation.
LIMITATION OF LIABILITY
Complex Creative’s total liability under or in connection with this Agreement shall be limited to the greater of:
- 150% the total value of this Agreement; or
- This limit shall apply howsoever that liability arises, including, and without limitation, a liability arising by breach of contract, arising by tort (including, and without limitation, the tort of negligence), or arising by breach of statutory duty.
Nothing within this clause shall exclude or limit liability for:
- Death or personal injury caused by negligence.
- Fraud or fraudulent misrepresentation.
Complex Creative will not be liable to the Client, whether in contract, tort, or restitution, or breach of statutory duty, or otherwise, for any:
- Loss of profit.
- Loss of goodwill.
- Loss of business.
- Loss of business opportunity.
- Loss of anticipated saving.
- Loss of corruption of data or information.
- Loss of contracts.
- Loss of use of money.
- Loss of actual savings.
- Loss of revenue.
- Loss of reputation.
- Ex gratia payments.
- Loss of operation time.
- Loss of opportunity.
- Special, indirect, or consequential damage or loss suffered by the Client, arising under or in connection with this Agreement.
- Where Complex Creative provide you with links to other sites and resources provided by third parties (such as the Web Hosting Service website), these links are provided for your information only. Complex Creative have no control over the contents of those sites or resources and such links should not be interpreted as approval by Complex Creative of those linked sites, or the information you may obtain from them. Complex Creative therefore accept no responsibility for any loss caused by a third party.
- Complex Creative operates as a reseller or sub-licensor of third-party Web Hosting Services, software, and equipment used in connection with the Services (“Resold Products”). Complex Creative shall not be responsible for any changes in the Services that cause any Resold Products to become obsolete, require modification or alteration, or otherwise affect the performance of the Services.
- Any malfunction or defects of Resold Products, either sold, sublicensed, subscribed, or provided by Complex Creative to you will not be deemed a breach of Complex Creative’s obligations under this Agreement.
- Any rights or remedies you may have regarding the ownership, licensing, performance, or compliance of any Resold Product are limited to those rights extended to you by the provider of any such Resold Product.
- You are entitled to use any Resold Product supplied by Complex Creative only in connection with your use of the Services as permitted under this Agreement.
- You shall not attempt to copy, alter, or tamper with any Resold Product or use it other than in connection with the Services as permitted under this Agreement.
- You shall not resell or transfer any Resold Product, or any technical data derived therefrom, in violation of any applicable law, rules or regulations.
- Complex Creative’s total liability under or in connection with this Agreement shall be limited to the greater of:
Complex Creative may terminate this Agreement with immediate effect by giving written notice to the Client if:
- The Client fails to pay any amount due under this Agreement on the due date for payment and remains in default for more than 7 days after being notified in writing to make such payment.
- The Client commits a material breach of any term of this Agreement where the breach is irremediable, or if such a breach is remediable, fails to remedy that breach within a period of 7 days.
The Client repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the
terms of this Agreement.
- This shall include any abuse (whether physically or verbally) of Complex Creative’s Team (at Complex Creative’s absolute discretion).
- A petition is filed, a notice is given, a resolution is passed, or an order is made for or in connection with the winding up of the Client’s business activities.
- An application is made to court (or an order is made) for the appointment of an administrator, or if notice of intention to appoint an administrator is given over the other party.
- Complex Creative may terminate this Agreement with immediate effect by giving written notice to the Client if:
CONSEQUENCES OF TERMINATION
On termination of this Agreement for any reason, Complex Creative shall immediately deliver to the Client:
- On termination of this Agreement for any reason, the Client shall immediately pay to Complex Creative, all sums due and owing to it in connection with this Agreement.
- The Client shall be liable to pay for the remainder of their 12-month hosting package in the event of termination.
- Both parties shall return, destroy, or otherwise deal with, any Confidential Information as the disclosing party shall wish for it to be dealt with.
- On termination or expiry of this Agreement, the following clauses shall continue in force: clause 9, clause 10, clause 12, and clause 23.
- Termination or expiry of this Agreement shall not affect any rights, remedies, obligations, or liabilities of the parties that have accrued up to date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
- On termination of this Agreement for any reason, Complex Creative shall immediately deliver to the Client:
If any Services are not supplied in accordance with the terms and conditions of this Agreement, or Complex Creative fails to comply with any terms of this Agreement, the Client shall only be entitled (without prejudice to
any other right or remedy) to require Complex Creative to carry out such additional work as is necessary to correct its failure.
- Complex Creative takes no responsibility whatsoever for any third-party service (or lack of).
- If any Services are not supplied in accordance with the terms and conditions of this Agreement, or Complex Creative fails to comply with any terms of this Agreement, the Client shall only be entitled (without prejudice to any other right or remedy) to require Complex Creative to carry out such additional work as is necessary to correct its failure.
A Force Majeure Event is any circumstance not within a party’s reasonable control. This includes, without limitation:
- Acts of God such as flood, drought, earthquake, tsunami, or other natural disaster, epidemic, or pandemic.
- War, or threat of or preparation for war (including terrorist attack, armed conflict, civil war, civil commotion, or riots).
- Imposition of sanctions.
- Nuclear, chemical, or biological contamination.
- Sonic boom.
- Fire, explosion, or accident (including collapse of building).
- Interruption or failure of utility services.
- Provided it has complied with this clause 15, if a party is prevented, hindered, or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event, the affected party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
- The corresponding obligations of the other party will be suspended and its time for performance of such obligations extended to the same extent as those of the affected party.
The affected party shall:
- As soon as practicable after the start of the Force Majeure Event, but no later than 7 Business Days from its start, notify the other party in writing of the event, the date on which it started, it’s likely or potential duration, and the effect of the event on its ability to perform any obligations under this Agreement.
- Use reasonable endeavours to mitigate the effect of the event on the performance of its obligations.
- A Force Majeure Event is any circumstance not within a party’s reasonable control. This includes, without limitation:
- No variation of this Agreement shall be effective unless it is in writing and signed by the parties or their authorised representatives.
- A waiver of any right or remedy under this Agreement or by law, is only effective if given in writing and shall not be deemed a waiver of any subsequent breach.
- A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law, shall not constitute a waiver of that, or any other, right or remedy.
RIGHTS AND REMEDIES
- The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
- If any provision or part provision of this Agreement becomes invalid, illegal, or unenforceable, this shall not affect the validity and enforceability of the rest of this Agreement.
- If it comes to the attention of either party that any provision or part provision of this Agreement is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid, and enforceable.
AGREEMENT IN FULL
- This Agreement, including any schedules and appendixes, constitutes the entire agreement between the parties, and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and assurances between them, whether written or oral.
- Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties or constitute any party the agent of another party.
THIRD PARTY RIGHTS
- No one, other than a party to this Agreement, shall have any right to enforce any of its terms.
Any notice or other communication given to a party in connection with this Agreement shall be in writing, and shall be:
- Delivered either by hand, by pre-paid first-class post, or by other next working day delivery service, at the receiving party’s postal address provided in this Agreement unless otherwise stated; or
- Sent by email to the party’s nominated email address; or
- Sent by text message or WhatsApp to Complex Creative’s nominated mobile number.
- Any notice or other communication given to a party in connection with this Agreement shall be in writing, and shall be:
GOVERNING LAW AND JURISDICTION
- This Agreement, and any dispute or claim arising out of, or in connection with, it or its subject matter or formation (including non-contractual disputes), shall be governed and construed in accordance with the law of England. Both parties agree that the courts of England will have exclusive jurisdiction.