Fifty Five and Five

Master Services Agreement

1. DEFINITIONS AND INTERPRETATION 
In this Agreement the following definitions shall apply:
Agreement means these terms and conditions and the details in this document;
Client means the Client whose name and address are set out in any Work Order;
Prospect means any potential client
Fifty Five and Five means Fifty Five and Five Limited whose registered office is at 201 Borough High Street, London, SE11J1.
Confidential Information means information relating to the business, business strategy, initiatives and trade secrets of each party including but not limited to corporate and marketing strategy, business development and plans, sales reports and research results, business methods and processes, technical information and know-how and which is not in the public domain, including inventions, designs, programs, techniques, database systems, formulae and ideas; business contacts, lists of customers and suppliers and details of contracts with them; and any document marked “confidential” PROVIDED THAT Confidential Information shall not extend to information which is
(a) already in the public domain other than through default of the receiving party;
(b) already in the receiving party’s possession (except where received with no obligation of confidentiality or received in anticipation of the signing of this Agreement);
(c) disclosed to the receiving party by a third party without any obligation of confidentiality; and
(d) independently developed by the receiving party without reference to the Confidential Information;
Services means the services to be provided by Fifty Five and Five to the Client pursuant to this Agreement as set out in any Work Order;
Personnel means agents, employees or subcontractors engaged or appointed by the Client or Fifty Five and Five;
Work Order means any agreed or signed document between Fifty Five and Five and a Client

2. BASIS OF CONTRACT
2.1 A Work Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.

2.2 The Work Order shall only be deemed to be accepted when Fifty Five and Five issues written acceptance of the Order at which point and on which date the Contract shall come into existence (“Commencement Date”).

2.3 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Fifty Five and Five which is not set out in the Contract.

2.4 Any samples, drawings, descriptive matter or advertising issued by Fifty Five and Five, and any descriptions or illustrations contained in Fifty Five and Five catalogues or brochures, 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.

2.5 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.

2.6 Any quotation given by Fifty Five and Five shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.

3. SUPPLY OF SERVICES AND DELIVERABLES
3.1 Fifty Five and Five shall supply the Services to the Client in accordance with the Specification in all material respects.

3.2 Fifty Five and Five shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.3 Fifty Five and Five shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Fifty Five and Five shall notify the Client in any such event.

3.4 Fifty Five and Five warrants to the Client that the Services will be provided using reasonable care and skill.

3.5 After the Commencement Date, Fifty Five and Five will submit to the Client for approval:

3.5.1 Copy, layouts, artwork, creative concepts and/or scripts; and

3.5.2 Estimate of the cost of any items payable in addition to Fifty Five and Five original quotation.

3.6 Written or oral approval by the Client of the items specified in clauses 3.5.1 and 3.5.2 will be taken by Fifty Five and Five as authorisation to proceed with the instruction of third party suppliers as specified in the Order (or which the parties have subsequently agreed upon) in reliance on the Client’s authorisation and the Client shall at all times remain responsible for the costs of these third party suppliers.

3.7 Any claim regarding the quality or condition of the Deliverables must be notified to Fifty Five and Five within 48 hours of delivery of the Deliverables to the Client. If no such notice is received by Fifty Five and Five within the time period specified then the Client shall be deemed to have accepted the Deliverables. If the Client does notify Fifty Five and Five within the 48 hour timeframe then, provided Fifty Five and Five is given a reasonable opportunity to examine the affected Deliverables, Fifty Five and Five shall, at its option, correct, repair or replace the affected Deliverables. Fifty Five and Five shall not be obliged to correct, repair or replace the affected Deliverables where the defect arises because the Client has failed to follow Fifty Five and Five oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Deliverables or if the defect arises as a result of Fifty Five and Five following any drawing or design supplied by the Client or if the Client corrects, alters or repairs the Deliverables without Fifty Five and Five prior written consent.

3.8 The risk in the Deliverables shall pass to the Client as soon as they are delivered to the Client. Title to the Deliverables shall not pass to the Client until Fifty Five and Five has received payment in full (in cash or cleared funds) for the Deliverables any other goods or services that Fifty Five and Five has supplied to the Client.

3.9 Until title to the Deliverables has passed to the Client, the Client shall hold the Deliverables on a fiduciary basis as Fifty Five and Five bailee and keep the Deliverables separate from all other goods or materials held by the Client so that they remain readily identifiable as Fifty Five and Five property and maintain the Deliverables in satisfactory condition and keep them insured against all risks for their full price from the date of delivery. If before title to the Deliverables passes to the Client the Client becomes subject to any of the events listed in clause 9.1.2 or Fifty Five and Five reasonably believes that any such event is about to happen and notifies the Client accordingly, then without limiting any other right or remedy Fifty Five and Five may have, Fifty Five and Five may at any time require the Client to deliver up the Deliverables. If the Client fails to do so promptly, Fifty Five and Five may enter any premises of the Client or of any third party where the Deliverables are stored in order to recover them.

4. CLIENT’S OBLIGATIONS
4.1 The Client shall:

4.1.1 ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;

4.1.2 co-operate with Fifty Five and Five in all matters relating to the Services and promptly provide any information relating to the Services in sufficient time to enable Fifty Five and Five to perform its obligations;

4.1.3 provide Fifty Five and Five with such information and materials as Fifty Five and Five may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;

4.2 If Fifty Five and Five performance of any of its obligations 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”):

4.2.1 Fifty Five and Five 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 the Fifty Five and Five performance of any of its obligations;

4.2.2 Fifty Five and Five shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Fifty Five and Five failure or delay to perform any of its obligations as set out in this clause 4.2; and

4.2.3 the Client shall reimburse Fifty Five and Five on written demand for any costs or losses sustained or incurred by Fifty Five and Five arising directly or indirectly from the Client Default.

5. CHARGES AND PAYMENT
5.1 Unless agreed otherwise in writing and subject to clause 5.2, the Charges are as set out in the Order.

5.2 Fifty Five and Five reserves the right, by giving notice to the Client at any time, to increase the Charges at any time during the Term due to any event or factor beyond its control including but not limited to:

5.2.1 Any variation of duties or increase in the costs of materials, labour or printing;

5.2.2 Any charge in the Specification requested by the Client;

5.2.3 Any delay caused by the Client.

5.3 Fifty Five and Five may invoice the Client on completion of the Services. Fifty Five and Five can raise one or more interim invoice(s) for all or part of the Charges at any time. If the Client fails to accept completion of the Services then Fifty Five and Five may raise any invoice at any time after the Client has been notified that the Services are finished.

5.4 The Client shall pay each invoice submitted by Fifty Five and Five

5.4.1 within 30 days of the date of the invoice; and

5.4.2 in full and in cleared funds to a bank account nominated in writing by Fifty Five and Five , and

5.4.3 time for payment shall be of the essence of the Contract.

5.5 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by Fifty Five and Five to the Client, the Client shall, on receipt of a valid VAT invoice from Fifty Five and Five , pay to Fifty Five and Five such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

5.6 Without limiting any other right or remedy of Fifty Five and Five , if the Client fails to make any payment due to Fifty Five and Five under the Contract by the due date for payment (“Due Date”), Fifty Five and Five shall have the right to charge interest on the overdue amount under the Late Payment of Commercial Debts (Interest0 Act 1998 (as the same may be amended supplemented or re-enacted to reflect the Late Payment Directive 2011 (2011/7/EU)) and the client shall pay the interest immediately on demand. Fifty Five and Five shall also have the right to appropriate any payments made to Fifty Five and Five by the Client whether or not relating to the Services as Fifty Five and Five may think fit in order to pay off the outstanding amounts.

5.7 The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against Fifty Five and Five in order to justify withholding payment of any such amount in whole or in part. Fifty Five and Five may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Fifty Five and Five to the Client.

6. INTELLECTUAL PROPERTY RIGHTS
6.1 As between the Client and Fifty Five and Five, all Intellectual Property Rights in the Deliverables and the Pre-existing Materials shall be owned by Fifty Five and Five . At no point will the Intellectual Property Rights in the Pre-Existing Materials be transferred, assigned or licensed to the Client. Subject to clauses 3.8 and 3.9 (including for the avoidance of doubt the condition precedent of full payment of the Charges) the Intellectual Property Rights in the Deliverables but not the Pre-Existing Materials will be deemed to transfer to the Client.

6.2 Fifty Five and Five will use reasonable endeavours to ensure that any third party which is either engaged by it to produce (or which otherwise owns) any creative works or materials in respect of the Deliverables shall agree to assign to the Client any Intellectual Property Rights owned by them in relation to the Deliverables upon payment of their fees.

6.3 The Client acknowledges that, in respect of any third party Intellectual Property Rights, the Client’s use of any such Intellectual Property Rights is conditional on Fifty Five and Five obtaining a written licence from the relevant licensor on such terms as will entitle Fifty Five and Five to license such rights to the Client.

7. CONFIDENTIALITY
7.1 A party (“Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, 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 or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 7 shall survive termination of the Contract.

8. LIMITATIONS OF LIABILITY
8.1 The Client will indemnify and keep indemnified Fifty Five and Five from and against any and all proceedings, claims, damages, losses, expenses or liabilities which Fifty Five and Five may incur or sustain as a direct or indirect result of or in connection with the use of any information, representation, reports, data or materials supplied to it by the Client including but not limited to the Consumer Protection from Unfair Trading Regulations 2008.

8.2 Fifty Five and Five does not warrant or guarantee the success of any marketing exercise or program and the Client is responsible for checking the proposed Services and ensuring their accuracy and the veracity of the statements therein. Fifty Five and Five is not responsible for checking the accuracy of any information or data provided to it by the Client.

8.3 The Client warrants that it is not a consumer as defined under the Unfair Terms in Consumer Contract Regulations 1999.

8.4 Nothing in these Conditions shall limit or exclude the Fifty Five and Five liability for:

8.4.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
8.4.2 fraud or fraudulent misrepresentation; or
8.4.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.5 Subject to clause 8.4:
8.5.1 Fifty Five and Five shall under no circumstances whatever be liable to the Client, 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
8.5.2 Fifty Five and Five total liability to the Client 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 £1 million.
8.6 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.
8.7 The Client acknowledges that the limitations and exclusions contained in these Conditions are reasonable and if they had not been included, the Charges would have been increased significantly.
8.8 This clause 8 shall survive termination of the Contract.

9. TERMINATION
9.1 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:
9.1.1 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 of the breach;
9.1.2 an order is made or a resolution is passed for the dissolution or winding-up of the other party or an order is made for the appointment of an administrator to manage the affairs, business and property of the other party or such an administrator is appointed or documents are filed with the court for the appointment of an administrator or notice of intention to appoint an administrator is given by the other party or its trustees, officers, directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other party’s assets or undertaking or circumstances arise which entitle the Court or a creditor to appoint a receiver and/or manager or administrative receiver to which entitle the Court to make a winding-up or bankruptcy order or the other party takes or suffers any similar or analogous action in consequence of debt.
9.2 Without limiting its other rights or remedies, Fifty Five and Five 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.
9.3 Without limiting its other rights or remedies, if the Client becomes subject to any of the events listed in clause 9.1.2 or if Fifty Five and Five reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the Due Date for payment then Fifty Five and Five shall have the right to suspend provision of the Services under the Contract or any other contract between the Client and Fifty Five and Five and may demand payment of the Charges in full which shall be payable forthwith.

10. CONSEQUENCES OF TERMINATION
10.1 On termination of the Contract for any reason:
10.1.1 the Client shall immediately pay to Fifty Five and Five all of Fifty Five and Five outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Fifty Five and Five shall submit an invoice, which shall be payable by the Client immediately on receipt;
10.1.2 the Client shall return all of Fifty Five and Five Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then Fifty Five and Five may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
10.1.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or 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; and
10.1.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.

11. NOTICES
11.1 All communications between the parties about this Contract must be in writing and delivered: by hand; or sent by pre-paid first class post; or by email; or by facsimile transmission to its registered office or such changed address as shall be notified to the other party from time to time.
11.2 Communications shall be deemed to have been received:
11.2.1 if sent by pre-paid inland first class post, 2 days after posting (exclusive of the day of posting);
11.2.2 if delivered by hand, on the day of delivery;
11.2.3 if sent by facsimile transmission or email on a working day (in the UK) prior to 4.00pm at the time of transmission and otherwise on the next working day provided the sender can provide a fax delivery confirmation.

12. FORCE MAJEURE
12.1 Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 3 months the party not affected may terminate this agreement by giving 14 days’ written notice to the other party.
12.2 Any party that is subject to a force majeure event shall not be in breach of this agreement provided that it promptly notifies the other parties in writing of the nature and extent of the force majeure event causing its failure or delay in performance.
12.3 Under no circumstances shall the Client be entitled to delay payment because of a force majeure event.

13. GENERAL PROVISIONS
13.1 Any variation of the Contract must be in writing and signed on behalf of both parties. If a court decides that any part of the Contract cannot be enforced, that particular part of the Contract will not apply, but the rest of the Contract will. A waiver by a party of a breach of any provisions shall not be deemed a continuing waiver or a waiver of any subsequent breach of the same or any other provisions. Failure or delay in exercising any right under the Contract shall not prevent the exercise of that or any other right. The Client may not assign or transfer any benefit, interest or obligations under the Contract but Fifty Five and Five may assign or transfer any benefit, interest or obligation under this Contract without the consent of the Client. The provisions of the Contract (Rights of Third Parties) Act 1999 shall not apply to any person not a party to this Contract.

14. GOVERNING LAW AND JURISDICTION
14.1 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.
14.2 The parties remotely agree that the courts of England and Wales shall have exclusive jurisdiction to settle any disputes or claims that arise out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).

15. WORKING HOURS AND UK HOLIDAYS
5.1 Fifty Five and Five observes UK public and bank holidays. If the Services described in this document fall on one of these days then a reduced or zero service should be expected.