All services provided by Designer Don (herein called “Services”) are subject to these terms and conditions. The specific details (herein called “Specs”) of the Services will be set out in a separate document agreed by both parties.
These terms and conditions, together with the specific details will form the agreement (this “Agreement”) for the supply of the Services to the Customer.
If there is any conflict or inconsistency between these terms and the Specs, then the following order of precedence will apply:
- the Specs,
- these terms and conditions.
No other terms will apply to the supply of Services by Designer Don unless agreed in writing by an authorised signatory of Designer Don, or expressly stated otherwise in these terms and conditions.
The information available on DesignerDon.com or otherwise communicated to the Customer about the Services (the “Services”) is meant only to be a brief summary and will not form part of this Agreement. Any errors or omissions on DesignerDon’s website or another advertisement do not materially affect this Agreement.
Any advertising of Services on the Designer Don website is not an offer capable of acceptance; it merely constitutes an invitation by Designer Don for the Customer to make an offer to purchase Services. Acceptance of the Customer’s order will take place when Designer Don confirms pricing to the Customer in the Specs and the Customer accepts in the form of an initial down-payment, at which point a contract will come into existence between Designer Don and the Customer.
These terms and conditions do not apply to the supply of products, to which separate product terms and conditions apply.
Designer Don will reasonably endeavour to provide the Services:
(i) in line with applicable laws; and
(ii) in line with any performance dates set out in the Specs, any dates will be estimates only. Time will not be of the essence and Designer Don will be under no liability if it fails to meet any such dates.
The Customer will:
(i) co-operate with Designer Don in all matters relating to the Services;
(ii) provide promptly and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as reasonably required to carry out Services;
(iii) obtain and maintain in force all necessary licences and consents and comply with all applicable laws as required to enable Designer Don to provide the Services; and
(iv) provide to Designer Don promptly, all documents, information, items and materials reasonably required by Designer Don to carry out the Services and ensure that they are accurate and complete.
If Designer Don’s performance of its obligations under these terms and conditions is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, Designer Don will be entitled to an extension of time to perform its obligations equal to the delay caused by the Customer.
The charges for the Services are as set out in the Specs.
All charges exclude any applicable local sales taxes, which Designer Don will add at the rate and in the manner prescribed by law, if applicable.
Designer Don may increase the charges on an annual basis with effect from each anniversary of the date of signature of the Specs in line with the percentage increase in the local consumer prices index in the preceding 12 (twelve) month period, and the first such increase will take effect on the first anniversary of the date of signature of the Specs and will be based on the latest available figure for the percentage increase in the local consumer prices index.
Unless otherwise agreed in the Specs, all charges will be invoiced monthly in arrears. Designer Don will invoice the Customer at the end of each month for Services performed during that month. The Customer will pay Designer Don all amounts set out in each invoice within 30 days of receipt of that invoice.
If any sum is not paid on the due date for payment then, without prejudice to any other right or remedy:
(i) all sums then outstanding from the Customer will immediately become due and payable notwithstanding that such sums would not otherwise be due until a later date, and
(ii) Designer Don may apply a compensation charge as an estimate of administrative and other wasted costs incurred by Designer Don to the Customer of up to 5% of outstanding invoices; and
(iv) Designer Don may suspend the Services until payments are made in full.
Warranties and Remedies
Designer Don warrants that the Services will be provided using reasonable care and skill. If any Service falls short of this standard, Designer Don will re-provide the relevant Service.
The Customer will have no remedy in respect of any untrue statement made to it upon which it relied in ordering Services (unless such untrue statement was made fraudulently) other than any remedy set out expressly in these terms and conditions.
Save as expressly provided in these terms and conditions, all implied warranties, terms and conditions (whether statutory or otherwise) concerning the supply or non-supply of Services are excluded to the fullest extent permitted by law (including, without limitation, the implied terms of satisfactory quality and fitness for purpose).
The Customer acknowledges that it is responsible for ensuring that the Services it orders are fit for the purposes for which it intends to use them.
Designer Don will not be liable (whether in tort (including negligence), contract or breach of any duty or otherwise) for any of the following:
(i) indirect or consequential loss or damage;
(ii) loss of revenue;
(iii) loss of profits;
(iv) loss of productivity;
(v) loss of production;
(vi) loss of business or expected future business;
(vii) economic loss; or
(viii) damage to reputation or goodwill.
A force majeure event is any event beyond the reasonable control of Designer Don (including but not limited to strikes, pandemic, epidemic, crisis or outbreak, governmental measures, traffic congestion, the downtime of any external line, or Designer Don’s inability to procure the services, materials or articles required for the performance of this Agreement except at enhanced prices).
If Designer Don is prevented or restricted from carrying out all or any of its obligations under these terms and conditions because of any force majeure event, then Designer Don will be relieved of its obligations during the period that such event continues and will not be liable for any delay and/or failure in the performance of its obligations during such period. If the force majeure event continues for a period longer than fourteen days, Designer Don may cancel the affected order, without any liability to the Customer.
All intellectual property rights are and will remain the exclusive property of the party owning them or, where applicable, such party’s third-party licensors.
All intellectual property rights in any deliverables which are created by or on behalf of Designer Don in the course of the provision of the Services will vest in Designer Don on their creation and remain vested. Designer Don grants the Customer a non-exclusive licence to use the Services and the deliverables in its business. The Customer will not sub-license, assign or otherwise transfer the rights granted to it.
Designer Don does not warrant or give any assurance to the Customer that any Services supplied do not infringe the intellectual property rights of any third party.
All logos, trade names or trade marks (the “Marks”) owned or used by Designer Don in the course of its business are the property of Designer Don or its licensors. Designer Don reserves all intellectual property rights regarding the use of such Marks. The Customer may not use or permit the use of such Marks or any similar marks without the prior written permission of RS.
The Customer will not use or disclose any information in whatever form, whether in oral, tangible or documented form, that:
(i) is by its nature confidential; or
(ii) the Customer knows or ought to know is confidential; or
(iii) is designated by Designer Don as confidential, and in each case is disclosed to or otherwise learnt, acquired or developed by the Customer in connection with these terms and conditions (or their subject matter).
This clause will survive termination of this Agreement however arising.
Term and Termination
This Agreement will come into effect from the date of signature and down-payment by the Customer and continue, unless terminated earlier by the provisions of these terms and conditions, for the term stated in such Specs.
Either party may terminate this Agreement by giving to the other party not less than thirty (30) days written notice.
This Agreement may be terminated immediately on written notice by either party if the other party:
(i) passes a resolution for its winding-up or a court of competent jurisdiction makes an order for the winding-up or the dissolution of the other party;
(ii) is the subject of any:
(iia) steps taken for the making of an administration order or the appointment of an administrator under the out-of-court procedure under the Enterprise Act 2002,
(iib) notice given of an intention to appoint an administrator,
(iic) steps taken for the appointment of a receiver or administrative receiver, or
(iid) action by an encumbrancer to take possession of or sell any of that Party’s assets;
(iii) makes an arrangement or composition with its creditors generally or makes an application to a court of competent jurisdiction for protection from its creditors generally;
(iv) ceases to carry on business at any time for thirty (30) consecutive days; or
(v) is unable to pay its debts (within the meaning of that term under section 123, Insolvency Act 1986).
Designer Don may terminate this Agreement immediately on written notice to the Customer if the Customer is in default of any payment due.
Termination or expiry of this Agreement will not prejudice or affect the continued existence and the validity of the rights and obligations of the parties under any clauses the survival of which is necessary for the interpretation or enforcement of this Agreement.
Termination will not affect any accrued rights or existing obligations of either party under this Agreement.
On termination or expiry of this Agreement the Customer shall:
(i) immediately pay to Designer Don all outstanding unpaid invoices and interest, including a final settlement invoice that may be presented to bring the Customer’s account up to date to the point of termination; and
(ii) return all or any confidential information of Designer Don in its possession together with all copies thereof, or at Designer Don’s option destroy all such confidential information by shredding or incineration of all documents and other material in its possession, custody or control and/or irretrievably deleting the same if stored on electronic or magnetic media and certifying to Designer Don that this has been done.
The Customer and its representatives will comply with all applicable laws, statutes, and regulations relating to anti-bribery and anti-corruption and shall:
(i) not directly or indirectly induce any employee, agent or subcontractor of Designer Don to make any concession to or confer any benefit on the Customer, refrain or withhold from doing any act, in return for any gift, money, or another inducement;
(ii) not do or omit to do any act that will cause or lead Designer Don to be in breach of any laws or regulations; and
(iii) promptly report to Designer Don any request or demand for any undue financial or another advantage of any kind received by the Customer in connection with these terms and conditions.
Any breach of this clause will be a material breach of these terms and conditions which is incapable of remedy.
The Customer will ensure that slavery and human trafficking are not taking place in any of its supply chains or in any part of its own business. The Customer will, upon request, provide Designer Don with a statement of any such steps it has taken, and such other information as Designer Don may reasonably require to enable it to prepare a slavery and human trafficking statement. The Customer will notify Designer Don immediately if it becomes aware of any actual or suspected slavery or human trafficking in a supply chain which has a connection with this Agreement.
For this clause,
(a) “Data Protections” and “Data Protection Laws” means any applicable laws and regulations set out in the UK GDPR and the Data Protection Act (2018); and
(b) the terms “Data Subject”, “Personal Data”, “processing”, “processor” and “controller” as set out in the UK GDPR.
Each party must comply with the laws governing Data Protection in the circumstances in which it processes Personal Data in connection with this agreement.
If either party suffers a personal data breach (as defined in the UK GDPR), it will immediately notify the other party and provide the other party with reasonable cooperation and assistance about any such complaint, notice, communication or Personal Data breach.
Rights, Obligations and Enforcement
Designer Don may at any time assign, transfer or sell all of its rights and obligations under this Agreement without the prior consent of the Customer.
No purported variation of this Agreement will be valid unless it is in writing and signed by or on behalf of each party.
Any notice given by one party to another under this Agreement will be in writing.
No failure or delay by a party to enforce or exercise any right or remedy under this Agreement or by law will be deemed to be a waiver of that or any other right or remedy, nor will it operate to bar the enforcement or exercise of that or any other right or remedy at any time subsequently. Any waiver of any breach of this Agreement will not be deemed to be a waiver of any subsequent breach.
Nothing in this Agreement is intended to or will operate to create a partnership or joint venture between the parties, or to authorise either party to act as agent for the other and neither party will have authority to act in the name of or on behalf of the other, or to enter into any commitment or make any representation or warranty or otherwise bind the other in any way.
This Agreement will be binding on each party and its respective successors and permitted assigns.
No express term of this Agreement nor any term implied under it is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
This Agreement will be governed by and interpreted in accordance with English Law and the Customer submits to the exclusive jurisdiction of the English courts, but Designer Don may enforce this Agreement in any court of competent jurisdiction.
If any part of these terms and conditions is found to be unenforceable by any court or competent authority or would be found to be unenforceable if it were interpreted or construed in a particular way, then it is the parties’ express intention that the relevant wording should be interpreted or construed so as to avoid such a finding and that, in the event of such a finding, the remainder of the provision in question will be interpreted or construed to give it full effect.
Page created: 17th April 2014
Last updated: 11th March 2021