9.6 Any monies received by Glue from You may be applied by Glue at its option against any additional administration costs and/or interest charged prior to application against any principal sums due from You which may be applied in any order.
9.7 You shall pay all sums due to Glue under this Contract without any set off, deduction, counterclaim and/or any other withholding of monies.
9.8 Payment shall not be deemed to be made until Glue has received either cash or cleared funds in respect of the full amount outstanding.
9.9 Glue reserves the right to render an invoice to You at any time before commencing any work as a non- refundable deposit.
9.10 Glue reserves the right to increase the Job Cost, by giving notice to You at any time before delivery, to reflect any increase in the cost of the Deliverables to Glue that is due to:
(a) any factor beyond the control of Glue (including supplier cost increases, foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by You to change the delivery date(s), quantities or types of Deliverables ordered, or Deliverable specification; or
(c) any delay caused by any instructions of You or failure of You to give Glue adequate or accurate information or instructions in respect of the Deliverables.
9.11 If any payment is not made in full to Glue when due then Glue may withhold or suspend future or current production of Deliverables (including the suspension of the live availability of websites) under the Contract and/or any other agreement with You.
9.12 If the production of any Deliverables are cancelled or the Contract is terminated by You before completion of the production of the Deliverables, Glue shall be entitled to be paid on a quantum meruit basis for that part of the Deliverables already produced or costs which cannot be cancelled or deferred. Glue may invoice You accordingly.
10. QUALITY OF DELIVERABLES
10.1 Glue warrants that on delivery the Deliverables shall:
(a) conform in all material respects with their description and any applicable specification; and
(b) be free from material defects in design, material and workmanship. Subject the limited warranty above, all other implied, express, oral or other warranties or representations of any kind are hereby excluded so far as permitted by law.
10.2 Subject to clause 10.3, if:
(a) You give notice in writing as provided in clause 8.8 that some or all of the Deliverables do not comply with the limited warranty set out in clause 10.1;
(b) Glue is given a reasonable opportunity of examining such Deliverables; and
(c) You (if asked to do so by Glue) returns such Deliverables to Glue’s place of business at the Glue’s cost, Glue shall, at its option, repair or replace the defective Deliverables, or refund the price of the defective Deliverables in full.
10.3 Glue shall not be Liable for the Deliverables’ failure to comply with the warranty in clause 10.1 if:
(a) You make any further use of such Deliverables after giving a notice in accordance with clause
10.2;(b) the defect arises because You failed to follow Glue’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Deliverables or (if there are none) good
trade practice;
(c) the defect arises as a result of Glue using any specification, Materials or Content supplied by You;
(d) You alter or repair the Deliverables without the written consent of Glue;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
(f) the Deliverables differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
10.4 Except as provided in this clause 10, Glue shall have no Liability to You in respect of the Deliverables’ failure to comply with the warranty set out in clause 10.1.
10.5 The terms of these Conditions shall apply to any repaired or replacement Deliverables supplied by Glue under clause
10.2 Subject to clause 10.3, if:
(a) You give notice in writing as provided in clause 8.8 that some or all of the Deliverables do not comply with the limited warranty set out in clause 10.1;
(b) Glue is given a reasonable opportunity of examining such Deliverables; and
(c) You (if asked to do so by Glue) returns such Deliverables to Glue’s place of business at the Glue’s cost, Glue shall, at its option, repair or replace the defective Deliverables, or refund the price of the defective Deliverables in full.
10.6 Glue will not be Liable to You for any loss or destruction of software or systems, temporary or otherwise, which occurs following use of the Deliverables except and to the extent that it is caused by the wilful default of one of Glue’s employees.
10.7 Glue will endeavour to ensure that the Deliverables contain no software routine designed to permit unauthorised access, disable or erase existing software or software contained in the Deliverables or any data or hardware.
10.8 Glue shall have no Liability to You if any hardware or software used in conjunction with the Deliverables malfunctions, fails or is otherwise unable to communicate with other systems or Internet users (including where computer viruses have caused such failures) such that the use of the Deliverables is hindered or impeded where such event could not reasonably have been prevented or controlled by Glue.
11. TITLE AND RISK
11.1 Risk in the Deliverables shall pass to You on delivery.
11.2 Title to the Deliverables shall not pass to You until Glue receives payment in full (in cash or cleared funds) for the Deliverables.
11.3 Until title to the Deliverables has passed to You, You shall:
(a) store the Deliverables separately from all other Deliverables held by You so that they remain readily
identifiable as Glue’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Deliverables;
(c) maintain the Deliverables in satisfactory condition and keep them insured against all risks for their full price on Glue’s behalf from the date of delivery;
(d) notify Glue immediately if You become subject to any of the events listed in clause 13.1(b) to clause 13.1(l); and
(e) give Glue such information relating to the Deliverables as Glue may require from time to time.
11.4 If before title to the Deliverables passes to You You become subject to any of the events listed in clause
13.1(b) to clause 13.1(l), then, without limiting any other right or remedy Glue may have:
(a) Your right to resell Deliverables or use them in the ordinary course of its business ceases immediately; and
(b) Glue may at any time:
(a) require You to deliver up all Deliverables in its possession which have not been resold, or irrevocably incorporated into another product; and
(b) if You fail to do so promptly, enter any premises of You or of any third party where the Deliverables are stored in order to recover them.
12. LIMITATION OF LIABILITY:
12.1 Nothing in these Conditions shall limit or exclude Glue’s liability for
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987.
12.2 Subject to clause 12.1:
(a) Glue shall under no circumstances whatever be Liable to You, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) Glue’s total Liability to You in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Job Cost.
13. TERMINATION
13.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 10 working days after receipt of notice in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) 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 other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.1(b) to clause 13.1(i) (inclusive);
(k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;or
(l) the other party’s financial position deteriorates to such an extent that in Glue’s opinion Your capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
13.2 Without limiting its other rights or remedies, Glue may terminate the Contract with immediate effect by giving written notice to You if You fail to pay any amount due under this Contract on the due date for payment.
13.3 Without limiting its other rights or remedies, Glue may suspend the supply of Deliverables or all further deliveries of Deliverables under the Contract or any other contract between You and Glue if You fail to pay any amount due under this Contract on the due date for payment, You
become subject to any of the events listed in clause 13.1(b) to 13.1(l) or Glue reasonably believes that You are about to become subject to any of them.
13.4 On termination of the Contract for any reason:
(a) You shall immediately pay to Glue all of Glue’s outstanding unpaid invoices and interest and, in respect of Deliverables supplied but for which no invoice has yet been submitted, Glue shall submit an invoice, which shall be payable by You immediately on receipt;
(b) You shall return all of Glue’s property and any Deliverables which have not been fully paid for. If You fail to do so, then Glue may enter Your premises and take possession of them. Until they have been returned, You shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) the accrued rights and remedies of the parties as at termination shall not be affected, 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;
(d) any licence granted pursuant to clause 7.2 shall terminate; and
(e) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
14. GENERAL PROVISIONS
14.1 No waiver by Glue of any breach of this Contract shall be considered as a waiver of any subsequent breach of the same provision or any other provision.
14.2 Glue may sub-contract any or all of its rights or obligations hereunder and may with Your consent, such consent not to be unreasonably withheld, assign the benefit and burden of its rights and obligations hereunder to any other entity.
14.3 You shall not assign its interest in this Contract (or any part) without the written consent of Glue.
14.4 Neither party shall divulge any confidential information which is supplied to it about the other party in the course of this Contract or any pre-Contract discussions, other than information forming part of the public domain otherwise than through a breach of this clause or any other obligation of confidence.
14.5 Glue is not Liable for any breach of this Contract caused by matters beyond its reasonable control including (without limitation) acts or omissions of third party suppliers or delays caused by third party suppliers, acts of God, fire, lightning, explosion, war, disorder, flood, drought, industrial disputes (whether or not involving Glue’s employees), weather of exceptional severity or acts of local or central government or other authorities.
14.6 If any provision of this Contract is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable then such invalidity or unenforceability shall not affect the other provisions of this Contract which shall remain in full force and effect. The parties agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
14.7 Save as expressly provided herein, this Contract is the entire agreement between the parties on the subject matter contained herein and supersedes all representations, communications and prior agreements between the parties in that regard.
14.8 Each party acknowledges that upon entering into this Contract it does not rely and has not relied on any representation (whether negligent or innocent), statement or warranty made or agreed to by any person (whether a party to this Contract or not) except those expressly referred to in this Contract. The only remedy available in respect of any misrepresentation or untrue statement made to either party shall be a claim for damages for breach of contract under this Contract. This clause shall not apply to any statement, representation or warranty made fraudulently, or to any provision of this Contract which was induced by fraud for which the remedies available shall be those available under the law governing this Contract.
14.9 A person who is not a party to this Contract has no rights under the Contracts (Rights of Third Parties) Act of 1999 to enforce any term of this Contract, but this does not affect any other right or remedy of a third party.
14.10 This Contract and any relevant interaction between the parties shall be governed by and construed in accordance with the laws of England and Wales and both parties agree to submit to the non exclusive
jurisdiction of the courts of England and Wales in relation to any claim, dispute or difference which may arise hereunder or in relation to any relevant interaction between the parties prior to this Contract