Egglab Media Limited
Terms & Conditions of Service
1.1 In this Agreement unless the context otherwise requires:
“Business Day” means a day (other than a Saturday or Sunday) on which the banks are ordinarily open for business in the City of London;
“Charges” means the fees, expenses and charges set out in the agreed charges schedule as amended from time to time in accordance with the provisions of this Agreement;
“Commencement Date” means the date of this Agreement;
“Confidential Information” means secret or confidential commercial, financial, marketing, technical or other information know-how, trade secrets and other information in any form or medium whether disclosed orally or in writing before or after the date of this Agreement, together with any reproductions of such information in any form or medium or any part(s) of this information (and “confidential” means that the information, either in its entirety or in the precise configuration or assembly of its components, is not publicly available);
“Control” shall mean the ability to exercise or be entitled to acquire, direct or indirect control over the affairs of egglab including the possession of or the entitlement to acquire over 50% of the issued share capital of egglab or the voting power in egglab;
“Force Majeure” means any event outside the reasonable control of either party affecting its ability to perform any of its obligations (other than payment) under this Agreement including Act of God, fire, flood, lightning, war, revolution, act of terrorism, riot or civil commotion, but excluding strikes, lock-outs or other industrial action, whether of the affected party’s own employees or others, failure of supplies of power, fuel, transport, equipment, raw materials or other goods or services;
“Personnel” means the employees of egglab or any employees of the sub-contractor of egglab who are to be engaged in providing the Services including, without limitation, the Representative;
“Quotation” means the quotation issued by egglab to the Client in connection with the supply of the Services;
“Representative” means the person to be appointed by egglab as representative in accordance with Clause 5.1;
“Services” means the performance of services whose scope is set out in clause 4 and more particularly described as set out in the agreed scope of work;
2.1 This Agreement shall come into force on the Commencement Date and shall unless terminated earlier in accordance with Clause 13 below.
2.2 The provision of the Services shall be subject to this Agreement and except as provided in clause 2.4 no representative or agent of egglab has authority to agree any terms or make any representations inconsistent with them or to enter into an agreement except on the basis of this Agreement.
2.3 Provision of the Services will be subject to these terms to the exclusion of all other terms and conditions (including any terms or conditions which the Client purports to apply under any purchase order, confirmation of order, specification or pre-contract negotiations) or any inconsistent terms implied by law or trade custom, practice or course of dealing.
2.4 This Agreement applies to all sales by egglab and any variation to this Agreement (including in respect of the Services to be supplied) and any representations about the Services shall have no effect unless expressly agreed in writing and signed by a director of egglab.
3.1 No order in pursuance of any Quotation or otherwise shall be binding on egglab unless and until such order is accepted by egglab pursuant to clause 3.4. If the Client places verbal orders egglab shall be entitled to ask the Client to confirm any order in writing.
3.2 Any Quotation given by egglab relating to the price of the Services and the time or period for delivery of the Services or otherwise is based on the relevant conditions and information known to egglab at the time and does not constitute an offer. Unless previously withdrawn or otherwise agreed in writing, any Quotation shall be valid for a period of 28 days, or if different, for the period stated in the Quotation. However all Quotations and orders are subject to withdrawal or alteration in whole or in part by egglab at any time.
3.3 Each order for the Services by the Client shall be deemed to be an offer by the Client to purchase the Services on the terms set out in this Agreement.
3.4 The quantity and description of the Services and any specification for them shall be as set out in the Quotation or in the acceptance of order issued by egglab.
3.5 Any typographical, clerical or other error or omission in any sales literature, Quotation, price list, acceptance of offer, invoice or other document or information issued by egglab shall be subject to correction without any liability on the part of egglab. Furthermore, egglab reserves the right to correct any clerical or typographical errors made by its employees at any time.
3.6 egglab reserves the right to request a minimum of two trade credit references upon receipt of an application for a Quotation from a potential Client.
4.1 Each party shall use its reasonable endeavours to identify all consents necessary for the fulfilment of its obligations under this Agreement and each party shall use its reasonable endeavours to obtain any such consent it requires.
4.2 In performing the Services, egglab shall operate as, and have the status of, an independent contractor and shall not operate or have the status of agent, employee or representative of the Client.
4.3 egglab warrants to the Client throughout the term of this Agreement:
(a) to provide the Services with reasonable skill, care and diligence and in a good and workmanlike manner in accordance with the provisions of this Agreement;
(b) to comply with and to ensure (so far as egglab has responsibility for such under this Agreement) that the Personnel comply with:
(i) the safety and security standards of the Client (provided egglab has been advised of such safety and security standards); and
(ii) any reasonable instructions and guidelines issued by the Client from time to time;
(c) to ensure that all of the Personnel will be appropriately qualified or experienced to undertake their tasks and will use reasonable skill and care in the provision of the Services; and
(d) to have at all times during this Agreement all licences, approvals and consents necessary to allow egglab and the Client to be lawful providers of the Services (including any computer hardware and software).
4.4 The Client warrants to egglab throughout the term of this Agreement:
(a) to supply egglab with such information as egglab reasonably requires to perform its obligations under this Agreement. Such information must be in writing, complete and correct;
(b) if necessary, the Client shall allow egglab access to the premises of the Client or to premises of clients of the Client for the purpose of the performance of the Services; and
(c) in relation to the Services to remain at all times responsible for compliance with all relevant legislation, regulations, codes of practice, guidance notes and other requirements of any relevant government or governmental agency.
4.5 egglab shall have no liability in respect of delays in or failure by the Client to perform any of the Client’s obligations under this Agreement and the Client shall indemnify egglab for any additional costs or expenses incurred by egglab as a result of such delays or failures.
4.6 The foregoing warranties shall be in lieu of any and all other warranties, conditions or guarantees as to description, quality, fitness for any particular purpose, satisfactory or merchantable quality of the Services or any other warranty, condition or guarantee whether express or implied except any statutory implied terms as to title.
4.7 egglab shall not be liable for breach of any of the warranties in clause 4.3 unless egglab is given a reasonable opportunity after receiving the notice of examining such the Services which are defective and for this purpose the Client shall provide authority for egglab’s representatives or agents to enter on to its premises or the premises of the client of the Client to inspect any defective Services within 14 days of a request being made by egglab.
4.8 egglab shall not be liable for a breach of any of the warranties in clause 4.3 and shall be under no liability under any other warranty, condition or guarantee if:
(a) any defect in the Services arises from any drawing, design, instructions or specification supplied by the Client;
(b) any defect arises from fair wear and tear, wilful damage, negligence, or abnormal working conditions or because the Client has failed to follow egglab’s instructions (whether oral or in writing);
(c) any defect arises from, as a result of or as a consequence of the general condition or any defect in the structure of the premises; and
(d) the total price for the Services has not been paid by the due date for payment.
4.9 If any of the Services do not conform with any of the warranties in clause 4.3 egglab shall at its option re-perform the Services (or the defective part) free of charge or, at egglab’s sole discretion, refund to the Client the price of such the Services at the pro rata rate.
4.10 If egglab complies with clause 4.9 it shall have no further liability for a breach of any of the warranties in clause 4.3 in respect of such the Services.
5.1 egglab shall appoint a senior employee as its representative to be the Client’s contact at egglab to be responsible for the performance of the Services and who will have the authority to liaise with and receive instructions from the Client. Such appointment (and any subsequent appointment) shall be subject to the prior written approval of the Client (such approval not to be unreasonably withheld or delayed).
5.2 For the avoidance of doubt, all Personnel shall at all times be and be deemed to be employees of egglab or the sub-contractor and not of the Client. egglab shall be responsible for the taking of all disciplinary action in respect of the Personnel and for paying any salaries, taxes, contributions, charges and any other liabilities payable in respect of the Personnel. The Client undertakes to egglab not to for a period of 24 months after termination or expiry of this Agreement to solicit or entice away any Personnel of egglab that they may have had any dealings with during the term of this Agreement.
6.1 In consideration of the provision of the Services by egglab to the Client, the Client shall pay the Charges to egglab as set out in the agreed charges schedule. No Charges shall be deemed to have been received until egglab has received cleared funds.
6.2 If the Client fails to make any payment of the Charges on the due date then, without prejudice to any other right or remedy available to egglab, egglab shall be entitled to:
(a) suspend any future performance of this Agreement with the Client; and
(b) charge the Client a late payment fee of £35 per day (without limitation on the number of days) for each day that payment is delayed beyond 30 days after the date of the invoice and also charge interest (both before and after any judgment) on the amount unpaid, at the rate applicable under the Late Payment of Commercial Debts (Interest) Act 1998 until payment in full is made; and
(c) to require that the Client make a payment in advance for the provision of the Services or part of the Services not yet performed as a condition of the continuation of the provision of the Services.
6.3 The Client shall make all payments due under this Agreement without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Client has a valid court order requiring an amount equal to such deduction to be paid by egglab to the Client.
6.4 All payments payable to egglab under this Agreement shall become due immediately upon termination of this Agreement despite any other provision.
7.1 Unless otherwise agreed by the parties egglab shall be entitled to invoice the Client for the Charges as set out in the agreed charges schedule.
7.2 All invoices submitted by egglab shall be paid within 30 days of the date of invoice save for the final invoice submitted by egglab under this Agreement following termination or expiry of this Agreement which shall be payable upon presentation of the invoice.
7.3 Egglab reserves the right to request advance payment from the Client of up to 25% of the total amounts due for the Services in respect of external third party costs and initial design work. egglab shall be entitled to await payment in full before commencing the Services.
8.1 Any dates quoted or specified by egglab for performance of the Services are approximate only and time for delivery and/or performance shall not be of the essence or made of the essence by notice. If no dates for delivery and/or performance are so specified, delivery will be within a reasonable time.
8.2 egglab will not be liable for any loss (including but not limited to loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the performance of the Services (even if caused by egglab’s negligence).
8.3 In the absence of prior written agreement between egglab and the Client egglab shall be allowed such access as it deems necessary to the Premises to perform the Services and the Client shall furnish egglab without charge and within a reasonable time with all information available to it relating to the Services and/or Premises and shall give such assistance and at its own expense provide such facilities at the Premises including but not limited to the provision of access light electricity security and other services as shall reasonably be required by egglab to enable it to exercise its obligations under the Contract.
9.1 egglab and the Client shall maintain in force at its own cost such insurance policies as are appropriate and adequate having regard to its obligations and liabilities under this Agreement (including, professional indemnity insurance and public liability).
10.1 egglab and the Client shall keep and procure to be kept secret and confidential all Confidential Information belonging to the other party disclosed or obtained as a result of the relationship of the parties under this Agreement and shall not use nor disclose the same save for the purposes of the proper performance of this Agreement or with the prior written consent of the other party. Where disclosure is made to any employee, consultant, sub-contractor or agent, it shall be done subject to obligations equivalent to those set out in this Agreement and egglab or the Client (as the case may be) agree to use all reasonable endeavours to procure that any such employee, consultant, sub-contractor or agent complies with such obligations provided that egglab and/or the Client shall continue to be responsible to the other party in respect of any disclosure or use of such Confidential Information by a person to whom disclosure is made.
10.2 The obligations of confidentiality in this Clause 10 shall not extend to any matter which the other party can show:
(a) is in, or has become part of, the public domain other than as a result of a breach of the obligations of confidentiality under this Agreement; or
(b) was in its written records prior to the Commencement Date; or
(c) was independently disclosed to it by a third party entitled to disclose the same; or
(d) is required to be disclosed under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction.
10.3 egglab shall ensure that the Personnel are aware of and undertake to comply with the obligations of confidentiality set out in Clause 10.1.
10.4 egglab or the Client shall not make any announcement or otherwise publicise the existence of or disclose to any person the terms of this Agreement without the prior written consent of the other party.
11.1 Save as otherwise provided in this Agreement, neither egglab or the Client shall in no circumstances have any liability for economic loss whether direct or indirect nor for any indirect or consequential loss (including in each case and without limitation any loss of profit, future revenue, reputation, goodwill or anticipated savings) of egglab or the Client (as the case may be) for any liability of egglab or the Client (as the case may be) to any other person for any such economic, indirect or consequential loss nor for any claim for damages or awards howsoever arising.
11.2 The liability of egglab shall be limited to the amount of the Charges actually paid by the Client at the date of the claim.
11.3 Any limitation of liability set out in the Agreement shall not apply so as to restrict either party’s liability for death or personal injury resulting from either party’s or that party’s employees, agents or sub-contractors negligence or fraud.
11.4 The parties hereby acknowledge and agree:
(a) that the limitations and exclusions of liability set out in this Clause 11 are fair reasonable for the purposes of the Unfair Contract Terms Act 1977;
(b) the terms and conditions of the Agreement have been open to negotiation and represent the outcome of such negotiation (whether or not any change has been made to the terms and conditions during the course of such negotiation); and
(c) each party’s obligations under the Agreement are fair and reasonable.
11.5 egglab does not warrant or represent and shall not be under any liability to ensure that the Services:
(a) necessary or appropriate for the Client’s business or intended use;
(b) compatible or interoperable with any platforms, browsers, operating systems or any other third party products or services except to the extent clearly stated in the agree scope of work;
(c) will operate to any performance benchmarks or standards other than as set out in the agreed scope of work.
12.1 If either party is affected by Force Majeure it shall immediately notify the other party in writing of the matters constituting the Force Majeure and shall keep that party fully informed of their continuance and of any relevant change of circumstances whilst such Force Majeure continues.
12.2 Save as provided in Clause 12.3 below Force Majeure shall not entitle either party to terminate this Agreement and neither party shall be in breach of this Agreement, or otherwise liable to the other, by reason of any delay in performance, or non-performance of any of its obligations due to Force Majeure.
12.3 If in egglab’s reasonable opinion an event of Force Majeure results in disruption of the Services and such disruption continues for more than 60 days, the Client may whilst such Force Majeure continues give 7 days notice in writing to egglab to terminate this Agreement with termination taking effect upon the expiry of such notice.
13.1 Either party may terminate this Agreement without payment of compensation or other damages caused to the other party solely by such termination by giving notice in writing to the other party if any one or more of the following events happens:
(a) the other party commits a material breach of any of its obligations under this Agreement which is incapable of remedy;
(b) the other party fails to remedy, where it is capable of remedy, or persists in any breach of any of its obligations under this Agreement (save as to payment) after having been required in writing to remedy or desist from such breach within a period of 28 days;
(c) any steps are taken or negotiations commenced by the other party or any of its creditors with a view to proposing any kind of composition, compromise or arrangement involving the other party and any of its creditors; the other party is deemed to be unable to pay its debts or calls a meeting for the purpose of passing a resolution to wind it up;
(d) the other party suffers or undergoes any procedure analogous to that specified in Clause 13.1 (c) above or any other procedure available in the country in which the other party is constituted, established or domiciled against or to an insolvent debtor or available to the creditors of such a debtor; and
(e) the other party may terminate this Agreement immediately by written notice to the other party, without payment of compensation or other damages caused to the other party solely by such termination, if the other party undergoes a change of Control.
13.2 egglab shall be entitled to terminate this Agreement or suspend provision of the Services if any sum payable by the Client under this Agreement is not paid within thirty days of the date of any invoice in accordance with this Agreement.
13.3 The termination of this Agreement or of any of the Services shall be without prejudice to the rights and remedies of either party which may have accrued up to the date of termination.
13.4 Any expiry or termination of this Agreement (for whatever reason) shall not affect the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
14.1 On the expiry or termination of this Agreement (for whatever reason) the following provisions shall apply:
(a) (subject to Clause 13.4 above) the relationship of the parties shall cease save as (and to the extent) expressly provided for in this Clause 14;
(b) the provisions of Clauses 10, 12 and 13 shall continue in full force and effect;
(c) egglab shall promptly return to the Client or dispose of in accordance with the Client’s instructions all Confidential Information and other data, passwords, login information for portals, control panels, other administrative tools and documents (including the Client’s clients’ details) and copies thereof disclosed or supplied to egglab pursuant to or in relation to this Agreement and shall certify in writing to the Client when the same has been completed.
15.1 The Client agrees that in relation to the Services all intellectual property rights of any nature and however they arise shall belong to egglab and nothing in this Agreement shall result in the Client obtaining any such rights.
15.2 Provided the Client pays for the Services in full and complies with this Agreement egglab shall grant to the Client a non-exclusive, non-transferable, royalty free licence (without the right to sub-licence or assign) to use the Services for the purposes of its own business and in accordance with the agreed scope of work and shall not resell the Services or any part of them.
15.3 The Client agrees not to otherwise use, promote, market, publish, distribute, license, sublicense, sell or commercially exploit the Services without the prior written consent of egglab. egglab Martina asserts its legal and moral rights in the Services and the Client confirms it will not offer, reuse or otherwise jeopardise the artistic integrity of the Services without the prior written consent of egglab.
15.4 egglab does not warrant that the Services shall be bug or error free.
15.5 egglab shall not be liable or be required to display any matter which is its opinion is or may be illegal or libellous or an infringement of the proprietary or other rights of any third party.
16.1 This Agreement is personal to egglab and the Client. Neither party shall assign, delegate, sub-contract, transfer, charge or otherwise dispose of all or any of its rights and responsibilities under this Agreement, nor appoint any sub-distributor or sub-agent without the prior consent of the other party.
17.1 Nothing in this Agreement shall create, or be deemed to create, a partnership or joint venture or relationship of employer and employee or principal and agent between the parties and no employee of egglab shall be deemed to be or have become an employee of the Client.
17.2 This Agreement contains the entire agreement between the parties in relation to its subject-matter. The Client irrevocably and unconditionally waives any right it may have to claim damages for, and/or to rescind this Agreement because of breach of any warranty not contained in this Agreement, or any misrepresentation whether or not contained in this Agreement, unless such misrepresentation was made fraudulently.
17.3 No purported alteration or variation of this Agreement shall be effective unless it is in writing, refers specifically to this Agreement and is duly executed by each of the parties to this Agreement.
17.4 The rights and remedies of either party in respect of this Agreement shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time granted by such party to the other. Any waiver of any breach of this Agreement shall be in writing. The waiver by either party of any breach of this Agreement shall not prevent the subsequent enforcement of any subsequent breach of that provision and shall not be deemed to be a waiver of any subsequent breach of that or any other provision.
17.5 If at any time any part of this Agreement (including any one or more of the Clauses of this Agreement or any sub-clause or paragraph or any part of one or more of these clauses) is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from this Agreement and the validity and/or enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired as a result of that omission.
17.6 Each of the parties confirms that the persons signing this Agreement on their behalf is authorised to sign on their behalf and to bind the Client and/or egglab (as the case may be).
18.1 Any notices sent under this Agreement must be in writing and may be served by personal delivery or by sending the notice by airmail post or facsimile or electronic mail transmission at the address given above or at such other address as the relevant party may give for the purpose of service of notices under this Agreement and every such notice shall be deemed to have been served upon delivery if served by hand or at the expiration of 5 days after despatch of the same if delivered by airmail post or at ten hours am local time of the recipient on the next Business Day following despatch if sent by facsimile or electronic mail transmission.
19.1 This Agreement and any dispute or claim arising out of or in connection with it shall be governed by, and construed in accordance with, the laws of England.
19.2 All disputes and claims arising out of or relating to this Agreement shall be subject to the non-exclusive jurisdiction of the English Courts to which the parties irrevocably submit.