The Client’s attention is particularly drawn to clauses 9 (Non-Solicitation), 12 (Warranties and Indemnities) and 13 (Limitation of Liability).
Definitions. In these Conditions, the following definitions apply:
Killer Creative: Killer Creative Limited, a company incorporated and registered in England and Wales with company number 05612842. Business Day: day (other than a Saturday, Sunday or public holiday in England) when banks are open for business. Change Order: has the meaning given in clause 5.1. Charges: the charges payable by the Client for the supply of the Services in accordance with clause 7. Client Materials: any materials provided or made available to Killer Creative by the Client for use in undertaking the Services or incorporation in the Deliverables. Conditions: these terms and conditions as amended from time to time in accordance with clause 18.8. Contract: the contract between Killer Creative and the Client for the supply of Services in accordance with and incorporating these Conditions, the Estimate and the Order Form. Client: the person or firm who contracts to purchase Services from Killer Creative. Data Protection Legislation: unless and until it is no longer directly applicable in the UK, the GDPR, and then, any successor legislation to the GDPR or the Data Protection Act 1998. Deliverables: the deliverables specified in the Estimate or if applicable, the Order Form, which are produced by Killer Creative for the Client as part of the Services. Estimate: the formal proposal statement prepared by Killer Creative to supply the Services required by the Client detailing key information such as (without limitation) the deliverables, estimated charges and timescales, and where a number of versions have been issued, the Estimate shall be the most recent one. Expenses: any expenses reasonably incurred in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Killer Creative for the performance of the Services, and for the cost of any materials. GDPR: the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK. Initial Term: the initial term specified in the Order Form. Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world. Order: the Client’s order for the Services as set out in the duly accepted Order Form, the Client’s written acceptance of the Estimate, or the Client’s purchase order form, as the case may be. Order Form: the attached document titled “Order Form” produced by Killer Creative for the Client which sets out (amongst other things) the Services which the Client would like Killer Creative to provide, such document being sent to the Client for acceptance either by means of a signature or otherwise by written agreement. Personal Data: has the meaning set out in the Data Protection Legislation and relates only to personal data, or any part of such personal data, in respect of which the Client is the data controller and in relation to which Killer Creative is providing Services under this Contract. Services: the services, including the Deliverables, to be supplied by Killer Creative to the Client under the Contract as set out in the Specification. Specification: the description or specification of the Services provided in writing by Killer Creative to the Client as set out in the Estimate or if applicable, the Order Form. Third Party Materials: any materials owned, supplied or licensed by a third party either before or during the term of this Contract that are used in undertaking the Services and/or included in the Deliverables as set out in the Specification and/or such other updated third party materials as expressly agreed in writing between the Client and Killer Creative.
Interpretation. In these Conditions, the following rules apply:
- a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
- a reference to a party includes its personal representatives, successors or permitted assigns;
- a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
- any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
- a reference to writing or written includes e-mails.
- Definitions. In these Conditions, the following definitions apply:
BASIS OF CONTRACT
- The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
- An Order shall only be deemed to be accepted when Killer Creative issues written acceptance of the Order, or if earlier, Killer Creative starts providing the Services or takes any action consistent with providing the Services or fulfilling the Order, at which point and on which date the Contract shall come into existence.
- Any samples, drawings, descriptive matter or advertising issued by Killer Creative, and any descriptions or illustrations contained in Killer Creative’s catalogues or brochures or in its website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
- These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- In the event of any conflict of inconsistency between these Conditions, the Order Form and the Estimate, the following shall prevail (in descending order of prevalence): (i) the Estimate; (ii) the Order Form; (iii) these Conditions.
- Any Estimate given by Killer Creative shall not constitute an offer, and is only valid for a period of 30 calendar days from its date of issue.
- Should the Client cancel the Contract before the supply of the Services, Killer Creative shall charge the Client for the work that has taken place and the Client shall fully indemnify Killer Creative against any expenses, charges or costs already incurred by Killer Creative or its subcontractors at the time of cancellation.
SUPPLY OF SERVICES
- Killer Creative shall supply the Services to the Client in accordance with the Specification in all material respects.
- Killer Creative shall aim to meet any performance dates stated in the Specification but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
- Killer Creative shall have the right to make any changes to the Services which are necessary to comply with any applicable law, or which do not materially affect the nature or quality of the Services, and Killer Creative shall notify the Client in any such event.
- Killer Creative warrants to the Client that the Services will be provided using reasonable care and skill.
- Killer Creative reserves the right not to supply the Services until (where relevant) Killer Creative receives the Client’s purchase order form, and in such cases the Client acknowledges and accepts that any failure or delay in submitting the Client’s purchase order form may impact on the Services, including any estimated performance dates.
The Client shall:
- ensure that the terms of the Order and any information it provides are complete and accurate;
- ensure that any information it provides does not infringe on the Intellectual Property Rights of any other person;
- ensure that any information it provides is not unlawful or inappropriate and does not contain a virus or hostile program;
- co-operate with Killer Creative in all matters relating to the Services; and
- provide Killer Creative with such information and materials as Killer Creative may require in order to supply the Services, and ensure that such information is accurate in all respects.
If Killer Creative’s performance of any obligation under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
- Killer Creative shall, without limiting its other rights or remedies, have the right to suspend performance of the Services until the Client remedies the Client Default and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays Killer Creative’s performance of any of its obligations;
- Killer Creative shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Killer Creative’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
- the Client shall reimburse Killer Creative on written demand for any costs or losses sustained or incurred by Killer Creative arising directly from the Client Default.
- The Client shall:
- Either party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until a relevant Change Order has been agreed by both parties in accordance with this clause 5. A Change Order shall be a duly revised Estimate setting out the proposed changes and the effect that those changes will have on the Services, the Charges, the estimated performance dates, and any other terms of the relevant Specification.
If either party wishes to make a change to the Services:
- that party shall notify the other and provide as much detail as reasonably required of the proposed changes, including the timing of the proposed change;
- the other party shall, as soon as reasonably practicable after receiving the information at clause 5.2(a), consider the proposed changes and request any further information it requires, and if appropriate, the parties shall discuss the proposed changes further;
- Killer Creative shall, as soon as reasonably practicable thereafter, provide a draft Change Order to the Client.
- If the parties agree to the Change Order, they will sign it or otherwise confirm their agreement in writing and the Estimate and the relevant Specification shall be deemed to be amended accordingly.
- On completion of the Services (or any part of them) the Client shall review the work for the purposes of confirming that the Services and the Deliverables have been successfully completed. The Client shall report any material failure of the Deliverables to conform with the Specification (Non-Conformity) to Killer Creative within 10 Business Days of delivery of the Deliverables setting out in writing the differences between the Deliverables and the Specification and any additional information which may assist in the correction of any Non-Conformity. If the Client fails to notify Killer Creative of any Non-Conformity within this time limit, the Deliverables shall be deemed accepted by the Client.
- Where applicable, Killer Creative shall use all reasonable efforts to correct any Non-Conformity and supply a corrected version of the Deliverables to the Client as soon as reasonably possible for further review. Unless otherwise stated in the Specification or agreed by Killer Creative in writing, the maximum number of corrections to the Deliverables permissible shall be one.
The Deliverables (or any part of them) shall be deemed accepted if the Client:
- gives Killer Creative notice of acceptance; or
- fails, without good reason, to comply with its obligations in this clause 6; or
- uses the Deliverables in any way.
CHARGES AND PAYMENT
- The Charges for the Services may be on a fixed fee basis or calculated on a time and materials basis.
- Where the Services are provided on a time and materials basis, the Charges shall be calculated in accordance with Killer Creative’s hourly or daily rates set out in the Estimate, which may be reviewed and updated by Killer Creative from time to time by giving notice to the Client.
- Where the Services are provided for a fixed fee, the total Charges (excluding Expenses) for the Services shall be the amount set out in the Estimate.
- Killer Creative shall be entitled to charge the Client for Expenses.
- Killer Creative shall, at its discretion, invoice the Client on a weekly basis, or on a monthly basis, or on completion of the Services (or any part of them), depending on the nature of the Services.
The Client shall pay each invoice submitted by Killer Creative:
- within 30 days of the date of the invoice; and
- in full and in cleared funds to a bank account nominated in writing by Killer Creative, and time for payment shall be of the essence of the Contract.
- Invoices shall be deemed to have been accepted if the Client does not present a written objection, identifying clearly the disputed invoice and the reasons why it is challenged, to Killer Creative within 10 Business Days of the date of the invoice.
- The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Killer Creative may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Killer Creative to the Client.
- All amounts payable by the Client under the Contract are exclusive of VAT which will be charged where appropriate.
Without prejudice to any other right or remedy that Killer Creative may have, if the Client fails to pay by the due date, Killer Creative may:
- charge interest on such sum pursuant to the Late Payment of Commercial Debts (Interest) Act 1998; and
- suspend all Services until payment has been made in full.
- Killer Creative reserves the right to recover any costs it incurs, including legal fees, on a full indemnity basis as a result of the Client’s failure to comply with these Conditions.
INTELLECTUAL PROPERTY RIGHTS
- All Intellectual Property Rights and all other rights in the Deliverables (other than Intellectual Property Rights in any Client Materials), shall be owned by Killer Creative.
- Subject to the Client’s payment of all Charges and other sums due to Killer Creative under the Contract, and subject also to any third party licence terms as referred to in clause 8.5, Killer Creative grants to the Client, in so far as is possible, an exclusive, royalty-free, perpetual, and irrevocable licence to use the Deliverables for the purpose of receiving and using the Services and Deliverables in its business.
- If it has been expressly agreed by both parties in writing, Killer Creative shall, subject to the Client’s payment of all Charges and other sums due to Killer Creative under the Contract, transfer (or procure the transfer) to the Client of all Intellectual Property Rights in or arising out of or in connection with the Services and the Deliverables.
- For the avoidance of doubt, any transfer of rights envisaged under clause 8.3 is subject to and conditional upon full and final payment of the Charges and any other sums hereunder, and until such time as the condition is satisfied, the rights shall be owned by Killer Creative.
- The Client acknowledges and accepts that the Client’s use of Intellectual Property Rights in any Third Party Materials is conditional on Killer Creative obtaining a written licence from the relevant licensor on such terms as the relevant licensor shall indicate, including the ability for Killer Creative to license such rights to the Client. The Client further acknowledges and accepts that the Client is responsible for ensuring the adequacy of the terms of any such licence to enable the Client to receive and use the Services and Deliverables in the manner or for the purpose(s) contemplated by the Client.
- The Client grants Killer Creative a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any Client Materials for the term of the Contract for the purpose of providing the Services to the Client.
- The Client acknowledges that Killer Creative (or its licensors) is the owner of all Intellectual Property Rights in any materials developed by Killer Creative either before or during the term of the Contract which are not included in the Deliverables, and that nothing in the Contract shall result in the Client owning any Intellectual Property Rights in the said materials.
The Client shall not, without the prior written consent of Killer Creative, at any time from the commencement of this Contract to 12 months after its termination or expiry, solicit or entice away from Killer Creative, or otherwise employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Killer Creative, with whom the Client has had contact during the provision of the Services.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, estimates or quotations, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 10 shall survive termination or expiry of the Contract.
- Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
- The parties acknowledge that for the purposes of this Contract and Data Protection Legislation, the Client is the data controller and Killer Creative is the data processor (where data controller and data processor have the meanings as defined in the Data Protection Legislation).
- The Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Killer Creative for the duration and purposes of this Contract.
Without prejudice to the generality of clause 11.1, Killer Creative shall, in relation to any Personal Data processed in connection with the performance by Killer Creative of its obligations under this Contract:
- process that Personal Data only on the written instructions of the Client unless Killer Creative is required by the laws of any member of the European Union or by the laws of the European Union applicable to Killer Creative to process Personal Data;
- ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
- ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
- not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and any relevant conditions stipulated in the Data Protection Legislation have been fulfilled;
- assist the Client, at the Client's cost, in responding to any data subject access request and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- notify the Client without undue delay on becoming aware of a Personal Data breach;
- at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination or expiry of the Contract unless required by law to store the Personal Data; and
- maintain complete and accurate records and information to demonstrate its compliance with this clause 11.
- The Client consents to Killer Creative appointing a third-party processor of Personal Data under this Contract. Killer Creative confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 11.
- Either party may, at any time on not less than 30 days’ notice and subject to written agreement by Killer Creative, revise clauses 11.1 to 11.5 (inclusive) by replacing them with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Contract).
WARRANTIES AND INDEMNITIES
The Client warrants that:
- it, or its licensors, is the owner of any Intellectual Property Rights in the Client Materials; and
- Killer Creative’s use of the Client Materials in accordance with this Contract to provide the Services will not infringe any third party Intellectual Property Rights.
- Killer Creative warrants that the Client’s possession and/or use of the Deliverables (excluding Third Party Materials) will not infringe any Intellectual Property Rights of any third party.
- Save as expressly provided in this Contract, all warranties, conditions, or other terms implied by statute, common law or otherwise are excluded.
The Client shall indemnify and hold harmless Killer Creative from and against all and any losses, liabilities, demands, claims, costs and expenses (including legal costs and disbursements on an indemnity basis) and damages incurred or suffered by Killer Creative, and any damages awarded against it, arising directly or indirectly as a result of or in connection with the following:
- any claim that the Client Materials infringe any Intellectual Property Rights of any third party or are libellous, defamatory or obscene;
- any failure by the Client to comply with any of its obligations pursuant to clause 11.
- The Client warrants that:
LIMITATION OF LIABILITY
Nothing in these Conditions shall limit or exclude Killer Creative’s liability for:
- death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractor;
- fraud or fraudulent misrepresentation; or
- breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
- Subject to clause 13.1, Killer Creative shall under no circumstances be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of sales or business, loss of or damage to goodwill, or any indirect or consequential loss arising under or in connection with the Contract.
- Subject to clause 13.1, Killer Creative’s total aggregate liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the total Charges paid under the Contract prior to the event giving rise to such liability.
- The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
- This clause 13 shall survive termination or expiry of the Contract.
- Nothing in these Conditions shall limit or exclude Killer Creative’s liability for:
TERM AND TERMINATION
- The Contract shall commence at such time as specified in clause 2 and shall continue, unless terminated earlier in accordance with this clause 14, for the Initial Term. The term of the Contract may be extended by either party giving written notice of its wish to extend the Contract before the end of the Initial Term or any Renewal Term, for such period(s) of time as is agreed between the parties (each period being a Renewal Term). Subject to the foregoing, upon expiry of the Initial Term or any subsequent Renewal Term, this Contract shall automatically terminate without notice.
- Without limiting its other rights or remedies, either party may terminate the Contract by giving the other party three months’ written notice, unless otherwise agreed.
Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
- the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
- the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
- the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
- the other party’s financial position deteriorates to such an extent that their capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
- Without limiting its other rights or remedies, Killer Creative may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 14 days after being notified in writing to do so.
- Without limiting its other rights or remedies, Killer Creative shall have the right to suspend provision of the Services under the Contract or any other contract between the Client and Killer Creative if the Client becomes subject to any of the events listed in clause 14.3.(b) to clause 14.3(d), or Killer Creative reasonably believes that the Client is about to become subject to any of them.
CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
- the Client shall immediately pay to Killer Creative all of the Killer Creative’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Killer Creative shall submit an invoice, which shall be payable by the Client immediately on receipt;
the Client shall, in respect of all Deliverables which have not been fully paid for:
- return or destroy all documents and materials containing or incorporating the Deliverables, and any copies of them;
- erase the Deliverables from the Client’s computer and communications systems and devices used by the Client, or which is stored in electronic form; and
- certify in writing to Killer Creative that the Client has complied with the provisions of this clause 15.1(b), and until such time, the Client shall be solely responsible for the safe keeping of the Deliverables and will not use them for any purpose.
- Termination or expiry of the Contract shall not affect any rights, remedies, obligations and 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.
- 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.
- On termination of the Contract for any reason:
- For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Killer Creative including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Killer Creative or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation nor direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
- Killer Creative shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
- If the Force Majeure Event prevents Killer Creative from providing any of the Services for more than four weeks, Killer Creative shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.
- If Killer Creative are unable to provide any of the Services for more than four weeks, the Client also has the right to terminate this contract immediately by giving written notice to Killer Creative
- If either party has any dispute with the other in connection with the Contract, then that party will promptly give full written particulars of the dispute to the other party, and the parties will, via their respective account managers or representatives of equivalent standing, try in good faith to resolve the dispute within 30 calendar days of delivery of those particulars.
- If the dispute is not resolved within 30 calendar days of written particulars being given to the parties (or any longer period agreed to by the parties) the dispute shall be escalated to the Chief Operating Officer or someone of equivalent or higher standing and authority of Killer Creative and the Client, who will try in good faith to resolve the dispute within 30 calendar days of the dispute being referred to them.
Assignment and other dealings.
- Killer Creative may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
- Should Killer Creative sub-contract any part of the Services, those suppliers will work under the terms of this Contract, and Killer Creative remain primarily liable for any sub-contractor default.
- The Client shall not, without the prior written consent of Killer Creative, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be sent:
- by pre-paid first class post (signed for service or recorded delivery); or
- by e-mail.
A notice or other communication shall be deemed to have been received:
- if sent by pre-paid first class post (recorded delivery or signed for service), on the date and time the delivery service’s receipt is signed for or recorded by the delivery service;
- if sent by e-mail, one Business Day after transmission.
- A notice or other communication sent to Killer Creative must be marked for the attention of the Chief Operating Officer and any email carbon copied to Rob@killercreative.co.uk, or it shall not be deemed to have been received.
- The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
- Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be sent:
- If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
- If any provision or part-provision of this Contract 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, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
- Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
- Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
- The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, representations and understandings between them, whether written or oral, relating to its subject matter.
- 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.
- Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by Killer Creative.
- Governing law. This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
- Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
- Assignment and other dealings.