Client means the person named on the Order who is the purchaser of the Services and/or Goods in accordance with the Terms
Documents include, in addition to any document in writing, any map, plan, graph, drawing or photograph, film, negative, tape or other device embodying visual images whether or not such item is provided in paper or electronic format and any disc, tape or another device embodying any other data FTP Details means the File Transfer Protocol passwords and other details Calm means Calm Inductions Limited, whose registered office is at Boho Zero, 21 Gosford Street, Middlesbrough, TS2 1BB.
Goods mean the goods, if any, (including the instalment of the goods or any part for them) that Calm Inductions is to supply in accordance with the Terms and which are specified in the Order Input Material means any Documents or other materials and any data, specification or other information provided by the Client including any email sent by the Client to third parties using Calm Inductions’s systems or the Output Material IPRs means all copyright, trademarks, trade names, patents, registered and unregistered design rights and all other intellectual property and proprietary rights, powers and benefits, including the right to register, transfer, licence and assign.
Order means the Calm Inductions standard quotation and order form.
Output Material means any Documents or other materials and any audio, video material, data, ideas, concepts, designs, images, machine code, manufacturing or other techniques or other information provided by Calm Inductions to the Client.
Services mean the services to be provided by Calm Inductions for the Client in accordance with the Terms and which are specified in the Order.
Terms mean these terms and conditions and the additional terms and conditions contained in the Order.
GL1.2 The headings in the Terms are for convenience only and shall not affect their interpretation. Any reference to any enactment includes reference to that enactment as amended from time to time and to any subordinate legislation made under that enactment.
GL2.1 The Terms constitute the entire agreement between the parties, supersede any previous agreements, representations, statements or understandings, may not be varied except in writing between the parties (signed by a Director of Calm Inductions) and set out the full extent of Calm Inductions’ obligations and liabilities. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Calm Inductions which is not set out in the Terms. Nothing in the Terms shall be interpreted so as to exclude or limit Calm Inductions’ liability for fraudulent misrepresentation.
GL2.2 The supply of all Goods and Services shall be on and in accordance with the Terms. All other terms, conditions, collateral contracts, undertakings and warranties, whether express or implied by statute or otherwise, in respect of the Goods or Services, are excluded to the fullest extent permitted by law (including any terms and conditions that the Client purports to apply under any purchase order or correspondence or otherwise).
GL3.1 Quotations are not binding on Calm Inductions and do not constitute an offer. Calm Inductions reserves the right to withdraw or revise any quotations.
GL3.2 The Client shall be responsible to Calm Inductions for ensuring the accuracy of the terms of any Order and for giving Calm Inductions any necessary information relating to the Goods or Services within a sufficient time to enable Calm Inductions to provide the Goods and/or Services in accordance with the Terms.
GL3.3 Calm Inductions may at any time without notifying the Client, make any changes to the Goods or Services which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Goods or Services.
GL3.4 The Client may not cancel an Order or terminate the contract without the consent in writing of Calm Inductions. If consent is given, the Client shall indemnify Calm Inductions against all loss (including loss of profit), damage, claims, costs (including the cost of all labour and materials used), expenses and actions arising out of such cancellation or termination unless otherwise agreed in writing. Rolling contracts shall be renewed automatically unless written notice to the contrary is received from the Client no less than 1 calendar month prior to the renewal date in question.
GL3.5 Should the Client breach any of these terms and conditions and the Client fail then to correct that breach within thirty (30) days following written notice from Calm Inductions specifying the said breach, Calm Inductions may terminate this Agreement.
GL3.6 The Client’s acceptance of the Order may take the form of its counter-signature on the Order or may take the form of correspondence confirming the same or maybe implied in the form of the fulfilment by The client of any of its obligations under these Terms, such as, without limitation, the payment of a deposit or the provision of Input Material.
GL4.1 Save as provided for to the contrary under these Terms, the price of the Goods and/or charge for the Services shall be as set out in the Order and shall be exclusive of VAT and other applicable taxes and duties (which shall be paid by the Client in the manner and rate described by law) and any disbursements including the costs of materials and external services (which may be charged to the Client in addition unless the Order provides otherwise).
GL4.2 The Client shall pay such additional sums which, in Calm Inductions’ sole discretion, are required as a result of the Client’s instructions or lack of instructions, the inaccuracy or unfinished nature of, errors in or additions or amendments to any Input Material or any other cause or fault attributable to the Client.
GL4.3 All sums owed by the Client to Calm Inductions shall be paid by the Client together with any applicable VAT, and without any set-off or other deduction, within 14 days of Calm Inductions’ invoice.
GL4.4 If the Client fails to make payment within 30 days Calm Inductions shall charge the Client interest on the unpaid amount (before and after judgment) at a daily rate equal Digital to 4 per cent per annum above the base lending rate from time to time of Barclays Bank PLC from the due date until payment is received. In the event that Calm Inductions issues legal proceedings in respect of any breach of these Terms by the Client, the Client will reimburse all costs and expenses incurred by Calm Inductions as a result of such action on demand and on an indemnity basis. Any termination by Calm Inductions of any contract with the Client on these terms shall be without prejudice to any sums chargeable to and payable by the Client for Goods or Services provided to the Client up to and including the effective date of the said termination.
GL5.1 The Client warrants that it is the sole beneficial owner of any and all IPRs in the Input Material or is otherwise entitled to make use of and licence the same to Calm Inductions for the purposes of the provision by Calm Inductions of the Services, Goods and/or Output Material.
GL5.2 Calm Inductions acknowledges that any and all of the IPRs subsisting in the Input Material shall remain the sole property of the Client or its licensors and Calm Inductions shall:
GL5.2.1 only use the Input Material for the purposes of providing the Services or the creation of the Goods; and
GL5.2.2 upon completion of the Services or the provision of the Goods, return all original Input Material to the Client.
GL5.3 The Client shall indemnify Calm Inductions fully against all liabilities, costs and expenses that Calm Inductions may incur as a result of using the Input Material and/or preparing the Output Material in accordance with the Client’s instructions, arising out of the infringement of any IPRs belonging to third parties.
GL5.4 If any Input Material contains or uses any IPRs owned by the Client or under its control, Calm Inductions shall have the right to use or allow the use of any such IPRs for the purpose of fulfilling Calm Inductions’ obligations under the Terms. Calm Inductions shall not gain any rights over such IPRs by virtue of its use, but shall be entitled to use the IPRs both during and after the production and supply of the Input Material to promote and advertise its own work.
GL5.5 The Client warrants that the Input Material does not contain inappropriate material such as the material that infringes any applicable laws, regulations or third party rights, material which is obscene, indecent, pornographic, seditious, offensive, defamatory,threatening, liable to incite racial hatred, menacing or blasphemous and that the Client shall not use the Output Material nor any facilities provided by Calm Inductions for the purpose of sending unsolicited bulk commercial email.
The Client shall indemnify Calm Inductions against all damages,losses and expenses arising as a result of any action or claim that the Input Material and/or the Output Material created consequently contains any such inappropriate material.
GL6.1 Calm Inductions shall have no liability to the Client for any loss, damages, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form or format, or arising from their late arrival or non-arrival, or due to any fault of the Client or any delay in transit not caused by the fault of Calm Inductions.
GL6.2 Save as provided for in clause GL6.6 below or otherwise in the Terms, Calm Inductions shall not be liable to the Client by reason of:
GL6.2.1 any misrepresentation (unless fraudulent);
GL6.2.2 the breach of any implied warranty, condition or other terms;
GL6.2.3 the breach of any duty at common law; or
GL6.2.4 the breach of these Terms; for any loss of profit, reputation, opportunity, goodwill, business or anticipated savings or any indirect, special or consequential loss, damages, costs, expenses or other claims (whether caused by the negligence of Calm Inductions its servants or agents or otherwise) which arise out of or in connection with the provision or late provision of the Goods or Services, or the failure to provide the Goods or Services or their use by the Client or any third party.
GL6.3 The entire liability of Calm Inductions under or in connection with the Terms shall not exceed the amount of Calm Inductions’ charges for the provision of the Goods and Services, except as expressly provided to the contrary in the Terms.
GL6.4 Calm Inductions shall not be liable to the Client by reason of any defamation or breach of the British Codes of Advertising and Sales Promotion arising from the use of the Input Material by Calm Inductions in the Output Material or Digital otherwise in the provision of the Services or creation of the Goods and the Client shall indemnify Calm Inductions against any loss, damages, costs, expenses or other claims arising from any such defamation or breach.
GL6.5 Unless otherwise stated in the Order, Calm Inductions does not warrant that the Output Material and Goods are suitable for use by all or any persons with disabilities and shall not be deemed to be in breach of its obligations to the Client or liable by reason of any such non-suitability. The Client acknowledges that it is under an obligation to expressly specify that Goods or Output Material should be suitable for use by persons with disabilities and to specify its requirements in full in writing in those respects, such requirements to be acknowledged and agreed by Calm Inductions prior to work starting. The Client acknowledges that it is responsible for ensuring compliance under the Disability Discrimination Act 1995 and agrees to indemnify Calm Inductions against any loss, damages, costs, expenses or other claims arising from any such breach.
GL6.6 Nothing in the Terms shall operate to exclude or limit Calm Inductions’ liability:
GL6.6.1 under Section 2 of the Consumer Protection Act 1987;
GL6.6.2 under Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982;
GL6.6.3 for any matter in respect of which it would be illegal for Calm Inductions to exclude or attempt to exclude its liability; and
GL6.6.4 for death or personal injury caused by Calm Inductions’ negligence or breach of these Terms.
GL6.7 All indemnities given by Calm Inductions under these Terms or any Order is provided on the basis that:
GL6.7.1 the Client gives notice to Calm Inductions of any infringement upon becoming aware of the same;
GL6.7.2 the Client gives Calm Inductions the sole conduct of the defence to any claim or action in respect of any infringement and does not at any time admit liability or otherwise, attempt to settle or compromise the claim or action except upon the express instructions of Calm Inductions;
GL6.7.3 the Client acts in accordance with the reasonable instructions of Calm Inductions including providing to Calm Inductions such assistance as it shall reasonably require in respect of the conduct of the defence of the claim including without prejudice to the generality of the foregoing filing of all pleadings and other court processes and the provision of all relevant documents; and
GL6.7.4 the claim or action giving rise to the damages (including costs) awarded to or agreed with the third party in question does not arise from the Client’s breach of any part of clause GL5 above.
GL7.1 Except as otherwise provided in the Terms and subject to clause GL7.3, Calm Inductions shall treat all Input Material as strictly confidential and shall not disclose the same to any third party, other than third party subcontractors who shall be bound by an obligation of confidentiality and to whom it is necessary to provide the information in order for Calm Inductions to fulfil its obligations to the Client.
GL7.2 Except as otherwise provided in the Terms and subject to clause GL7.3, the Client shall treat all prices and terms quoted as strictly confidential and shall not display, use or disclose the same to any third party for any reason whatsoever.
GL7.3 Clauses GL7.1 and GL7.2 shall not apply to any information:
GL7.3.1 already known to the other party or in its possession before the disclosure and free from the obligation to keep it confidential;
GL7.3.2 that is or becomes public knowledge through no wrongful act or default of the relevant party;
GL7.3.3 received from a third party without similar obligations of confidence and without breach of the Terms;
GL7.3.4 independently developed;
GL7.3.5 disclosed to a third party without similar restrictions on that third party’s rights of the disclosure; or
GL7.3.6 approved for release by written authorisation.
GL8.1 Calm Inductions shall not be liable to the Client or deemed to be in breach of its obligations to the Client by reason of any delay in performing, or failure to perform, any of its obligations to the Client in accordance with the Terms, if the delay or failure was due to any cause beyond Calm Inductions’ reasonable control, including without limitation:
GL8.1.1 act of God, explosion, flood, tempest, fire or Digital accident;
GL8.1.2 war or threat of war, national emergency, acts of terrorism, sabotage, insurrection or civil disturbance;
GL8.1.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary, regional or local authority;
GL8.1.4 strikes, lock-out or other industrial actions or trade disputes (whether involving employees of Calm Inductions or of a third party);
GL8.1.5 unavailability or shortages of goods, materials, fuel, part-machinery, or transportation;
GL8.1.6 power failure or breakdown in machinery; or
GL8.1.7 default of third party suppliers or subcontractors.
GL8.2 No failure or delay by either party in exercising any of its rights under the Terms shall be deemed to be a waiver of that right and no waiver by either party of any breach of the Terms by the other shall be considered as a waiver of any other breach or default or any subsequent breach or default. If any provision of these Terms are or becomes invalid, illegal or void, that shall not affect the validity and legality of the other provisions.
GL8.3 Calm Inductions will process all personal data provided to it by the Client or otherwise received in consequence of providing the Goods and Services, in accordance with the Data Protection Act 1998 (“DPA”) and any associated or subsequent legislation, codes of practice or statutory instruments. In particular Calm Inductions will act only on the instruction of the Client and will take reasonable precautions to keep such personal data secure, to prevent unauthorised disclosure and to ensure that appropriate steps are taken against the accidental loss, destruction or damage, or any unlawful processing of the data. At all times the Client will remain the data controller (as defined in the DPA) in respect of any personal data received by Calm Inductions in consequence of providing the Goods or Services.
GL8.4 Calm Inductions accepts no liability for any breach of the DPA by any subcontractor to whom it may lawfully pass personal data. The Client gives consent to the holding, processing and accessing of personal data provided to Calm Inductions for the purposes relating to the performance of the Services including (but not limited to) transferring such personal data to a sub-contractor or an agent for the purposes of debt collection. Calm Inductions shall give the Client 7 days’ notice before transferring personal data to a sub-contractor, to enable the Client to enter into a data processing agreement with the sub-contractor.
GL8.5 Nothing in the Terms shall confer on any third party any benefit whatsoever or the right to enforce any term of any contract to which the Terms relate and the Contract (Rights of Third Parties) Act 1999 shall not apply.
GL8.6 The Terms shall in all respects be determined and governed by English law. The parties submit to the exclusive jurisdiction of the English courts.
GL8.7 Without prejudice to any other right or remedy available to it, Calm Inductions may terminate the Contract or, notwithstanding any previous agreement or arrangement to the contrary, suspend any further deliveries without liability to the Client and where the Goods have been delivered but not paid for the price shall become immediately due and payable if either the Client makes any voluntary arrangement with its creditors, (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order (whether out of court or otherwise), goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or an encumbrancer takes possession of or a receiver or administrator is appointed over any of the property or assets of the Client or the Client ceases to trade.
GL8.8 The Client agrees to refrain from directly or indirectly recruiting any person employed or engaged by Calm Inductions for the purpose of providing the Services (including any sub-contractor) for a period of six months following completion of the Services.
