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Copyright Design Unlimited 2016
 

Terms & Conditions

APPENDIX B – CONDITIONS OF SUPPLY

  1. Definitions and Interpretation:
    • The following terms as used herein shall have the meaning as stated:

“Brief” means any verbal or written instructions from the Client to the Company to undertake work, which are acknowledged verbally or in writing by the Company (other than by the parties’ executing the Design Agreement);

“Build Yard” means the third party contractor who is to undertake the Works for or on behalf of the Client, where the Client is not a Build Yard;

“Charges” means the charges referenced in the Brief or set forth in the Proposal, including any Fee;

“Company” means DU International Limited, trading as Design Unlimited;

“Confidential Information” means any information disclosed by one (the disclosing party) to another (the receiving party) if the disclosing party has notified the receiving party that the information is confidential, or the information could reasonably be supposed to be confidential, which, for the avoidance of doubt, includes all Output Material;

“Conditions” means these terms and conditions;

“Contract” means a Contract between the Company and the Client for the supply of Services, as evidenced by: (i) the Brief; or (ii) the parties’ executing the Design Agreement;

“Client” means the party named as the Client in the Brief or the Proposal;

“Design” means the yacht design provided by the Company to the Client in accordance with the Contract;

“Design Agreement” means the Company’s Design Agreement;

“Design Service” means the yacht design service to be undertaken by the Company;

“Fee” means any fee contained in the Proposal;

“Independent Third Party Contractor” means any supplier (other than a Build Yard) engaged by the Client to undertake any services and/or supply any goods to the Client where said services and/or goods are directly or indirectly related to the subject-matter of the Contract or any part thereof and including any naval architect, engineer, or entity providing design input (other than the Company);

“Input Material” means any documents, files, plans, drawings, designs, content, text, images, logos, photographs or other materials, and any specification, data or other information provided by the Client to the Company relating to the Services;

“Intellectual Property Rights” means any design rights, utility models, patents, inventions, logos, business names, trademarks, domain names, copyright, moral rights, rights in databases, source codes, reports, drawings, specifications, know how, trade secrets, rights in software, rights in the nature of unfair competition and the right to sue for passing off and any other equivalent or similar rights to any of the foregoing in any jurisdiction, whether registered or unregistered;

“Output Material” means any Design, documents, files, plans, drawings, designs, content, text, images, logos, photographs or other materials, and any specification, data or other information provided by the Company to the Client relating to the Services;

“Personal Data” shall have the meaning ascribed to it in the Data Protection Act 1998;

“Proposal” means the Company’s proposal attached to the Design Agreement;

“Services” means those services referenced in the Brief or the Proposal (including any part or parts of them) including the Design Service and/or the Support Service and the purchase of any goods to be provided in conjunction with the Services (and where the Company is to purchase any such goods the provisions of Schedule 1 shall apply);

“Site” means the premises at which the performance of the Works and certain aspects of the Support Service shall take place;

“Support Service” means the support and/or supervision and/or management of the Works by the Company;

“Works” means any works undertaken at the Site by the Client or the Build Yard in order to implement the Design Service.

1.2        A reference to a clause is to a clause of these Conditions. Clause headings shall not affect the interpretation of these Conditions.

1.3        Any schedules and additional documents referred to in these Conditions form part of these Conditions and shall have effect as if set out in full in the body of these Conditions and any reference to these Conditions includes such schedules and such additional documents. Any reference to a paragraph is to a paragraph of a schedule.

1.4        Any reference to “parties” means the parties to the Contract and “party” shall be construed accordingly.

1.5        A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.6        Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

1.7        Words in the singular include the plural and in the plural include the singular.

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  1. Application of Conditions:

2.1        No Contract shall be deemed to have arisen:

(a)         other than in accordance with the Brief; or

(b)        unless and until the parties execute the Design Agreement.

2.2        The Contract shall be governed by these Conditions to the exclusion of any terms or conditions stipulated, incorporated, or referred to by the Client.

2.3        No amendment of the Conditions will be valid unless subsequently confirmed in writing by both parties by the signatures of an authorised representative of each party.

2.4        The following clauses 2.5-2.10 shall apply if and only if the Client enters into a Contract with the Company as a consumer – that is, as an individual acting wholly or mainly outside the Client’s trade, business, craft or profession – where the Contract is a distance contract or off-premises contract within the meaning of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

2.5        The Client may cancel a Contract entered into with the Company at any time within the period:

(a)         beginning when the Contract was entered into; and

(b)        ending at the end of 14 days after the day on which the Contract was entered into.

The Client does not have to give any reason for the cancellation.

2.6        The Client agrees that the Company may begin the provision of the Services before the expiry of the period referred to in clause 2.5 (b), and the Client acknowledges that, if the Company does begin the provision of the Services before the end of that period, then:

(a)         if the Services are fully performed, the Client will lose the right to cancel referred to in clause 2.5;

(b)        if the Services are partially performed at the time of cancellation, the Client must pay to the Company an amount proportional to the Services supplied or the Company may deduct such amount from any refund due to the Client in accordance with the exercise of the right to cancel referred to in clause 2.5.

2.7        In order to cancel a Contract on the basis described in clause 2.5, the Client must inform the Company of the Client’s decision to cancel. The Client may inform the Company by means of any clear statement setting out the decision. To meet the cancellation deadline, it is sufficient for the Client to send its communication concerning the exercise of the right to cancel before the cancellation period has expired.

2.8        If the Client cancels a Contract on the basis described in clause 2.5, the Client will receive a full refund of any amount the Client paid to the Company in respect of the Contract, subject to the requirements of clause 2.6.

2.9        The Company will refund money using the same method used to make the payment, unless the Client has expressly agreed otherwise. In any case, the Client will not incur any fees as a result of the refund.

2.10      The Company will process the refund due to the Client as a result of a cancellation on the basis described in clause 2.5  without undue delay and, in any case, within the period of 14 days after the day on which the Company is informed of the cancellation.

 

  1. Obligations of the parties:

3.1        The Company warrants (subject to the other provisions of these Conditions) that the Services will be performed with reasonable skill and care.

3.2        The Company’s liability pursuant to clause 3.1 shall be limited to re-performing any Services found not to have been performed with reasonable skill and care, provided that the failure of or defect in the Services is notified to the Company within 72 hours from completion of performance; otherwise, the Services shall be deemed to be satisfactory.

3.3        The Client or the Build Yard shall be responsible for undertaking the Works and the Company shall have no liability therefor, including for any deviation from any Design occasioned by the Client or the Build Yard. The recommendation of any Build Yard by the Company to the Client does not imply any approval of the Build Yard by the Company. The Client understands that the Build Yard is not the Company’s subcontractor and that the Client will be contracting with the Build Yard directly in engaging the Build Yard to undertake the Works. In this respect, the Client acknowledges:

(a)         that all quotations and invoices for the Works will emanate from the Build Yard; and

(b)        that the Client will be subject to the Build Yard’s own terms and conditions in connection with the Works (if any).

3.4        Where the Company agrees to undertake the Support Service, the Client acknowledges that although the Company will be responsible for supporting the Works, the Build Yard will be solely liable for ensuring that the Works are satisfactorily performed.

  1. Charges and Payment:

4.1        The Charges, costs, disbursements and expenses payable under the Contract shall be those which are referenced in the Brief or set forth in the Proposal and all such Charges, costs and expenses are exclusive of Value Added Tax or any similar tax.

4.2        The Charges, costs, disbursements and expenses payable under the Contract shall be paid in such amounts and at such times as are stipulated by the Company. Time for payment shall be of the essence.

4.3        Should the Client fail to make any payment due under the Contract, then the Company shall have the right to deem such failure to be a repudiation of the Contract (in which case it shall so inform the Client in writing) and without prejudice to any other right or remedy, the Company may:

(a)         terminate the Contract and recover from the Client damages for any loss suffered by the Company as a result of such termination; and/or

(b)        cancel any other contract or the remainder of any other contract which the Company may have with the Client and recover from the Client damages for loss suffered by the Company as a result of such cancellation; and

(c)         claim interest from the due date on the unpaid amount at the annual rate of 5 % above the London Interbank Offered Rate (LIBOR), accruing on a daily basis until payment is made, whether before or after any judgment; or

(d)        claim interest from the due date on the unpaid amount accruing on a daily basis at the rate prescribed by the Late Payment of Commercial Debts (interest) Act 1998;

(e)         claim late payment fees with respect to the unpaid amount; and

(f)         suspend any further work under the Contract or any other contract until payment is made in full and in addition the Company may, by notice in writing to the Client, treat any such contract as repudiated by the Client and recover all losses and expenses suffered by the Company as a result of such repudiation.

 

  1. Intellectual Property Rights, Confidentiality and Data Protection:

5.1        The Client grants the Company permission to utilise all Input Material in any manner in which the Company deems fit for the purposes of performing the Services.

5.2        The Client warrants that all Input Material is accurate, complete and truthful and belongs to or is licensed to the Client and that any and all use made thereof and work done in accordance with the Client’s instructions shall not infringe any Intellectual Property Rights of any third party. The Client shall hold the Company harmless and shall fully and promptly indemnify the Company against all liabilities, costs, damages and expenses which the Company may incur as a result of any and all use made thereof and/or work done as aforesaid which infringes any third party Intellectual Property Rights.

5.3        The Client further warrants that no Input Material shall be illegal, offensive, abusive, indecent, defamatory or obscene and agrees to fully and promptly indemnify the Company against any claim arising from any use thereof.

5.4        Any and all Intellectual Property Rights (howsoever existing or arising), in relation to the Services and the Output Material shall at all times vest in and belong solely and exclusively to the Company.

5.5        The Client acknowledges the Company’s ownership of any and all Intellectual Property Rights in the Services and the Output Material and agrees not to contest the Company’s ownership or use of any such Intellectual Property Rights.

5.6        Output Material may only be copied, reproduced, published or distributed:

(a)         with the prior written consent of the Company;

(b)        subject to such restrictions as the Company may require; and

(c)         on condition that the Company shall be given full credit for any Output Material which is copied, reproduced, published or distributed in accordance with this clause 5.6.

5.7        No licence to any Intellectual Property Rights in the Services or the Output Material shall be granted to or implied in favour of the Client other than in accordance with the provisions of clause 5.8, below. For the avoidance of doubt, the Client agrees that it will not transfer or assign any rights or interest in the Services or the Output Material without the Company’s prior written consent.

5.8        Subject to the prior payment to the Company of all Charges, costs and expenses under the Contract, the Company grants the Client a non-exclusive, revocable, non-transferable, non-assignable and personal licence to use the Design in order to implement the Design Service in respect of a single yacht, but for no other purpose, unless otherwise agreed by the Company in writing. All Intellectual Property Rights arising from the exercise of this licence by the Client shall vest in and belong solely and exclusively to the Company.

5.9        For the avoidance of doubt and unless otherwise agreed in advance in writing by the Company, the licence granted to the Client pursuant to clause 5.8 shall not entitle the Client to:

 

(a)         use the Design to design or build more than one yacht or a series of yachts based upon the Design, regardless of whether said yachts are identical to or different to the single yacht in respect of which the licence to use the Design is granted; or

(b)        amend or vary the Design, or add anything to or remove anything from the Design, or substitute any other design or material for the Design, in whole or in part.

5.10      If the Company agrees in writing to permit the Client to do any of the things proscribed by clause 5.9, all Intellectual Property Rights arising from the doing of any of those things shall vest in and belong solely and exclusively to the Company and the Client shall pay any royalties and other payments requested by the Company and shall take any other action that the Company reasonably deems necessary in connection therewith, at the Client’s own cost.

5.11      The provisions of clauses 5.8, 5.9 and 5.10 shall apply to the Client without limitation where the Client is to engage a Build Yard to undertake the Works and/or where the Client is to enter into a contract with an Independent Third Party Contractor. The Client shall, subject always to the requirements of clause 5.15, notify the Build Yard and/or the Independent Third Party Contractor of the restrictions placed upon the Client and shall ensure that the Build Yard and/or the Independent Third Party Contractor abides by those restrictions.

5.12      The Company retains the right in all cases to use the Output Material in any manner, at any time and in any part of the world (subject to any particular limitation, if any, previously agreed by the Company and then only to the extent of that limitation), for the purposes of advertising or otherwise promoting the Company’s work.

5.13      The Client must acknowledge the Company as the interior designers and exterior stylists of the Client’s yacht in any publication. Without limiting any of the provisions of clause 5.6, Output Material may only be published with the Company’s prior written consent and the Company must be given full credit in any publication.

5.14      The Client and the Company agree that in the course of the Company providing the Services to the Client the parties will disclose to each other certain Confidential Information.  The Client and the Company agree that each party will maintain the Confidential Information’s confidentiality and not disseminate it to any third party without the disclosing party’s prior written consent, save that this obligation shall not apply to any Confidential Information that either party has a duty (whether legal or otherwise) to communicate or that is in the public domain or is already in the receiving party’s possession through no fault of the receiving party. Neither party shall use any Confidential Information for any purpose other than the discharge of its obligations under the Contract. For the avoidance of doubt, the Client shall not use or exploit any of the Confidential Information of the Company in any manner not approved by the Company.

5.15      The prior consent of the Company to the disclosure of Confidential Information shall be required in accordance with clause 5.14 where the Client is to engage a Build Yard to undertake the Works and/or where the Client is to enter into a contract with an Independent Third Party Contractor and the Client shall:

  • subject the Build Yard to like obligations of confidentiality to those set out in clause 5.14 prior to commencement of the Works; and/or
  • subject the Independent Third Party Contractor to like obligations of confidentiality to those set out in clause 5.14 prior to entering into the contract with the Independent Third Party Contractor.

5.16      The Client acknowledges that disclosure or use of Confidential Information in violation of clauses 5.14 or 5.15 could cause irreparable harm to the Company for which monetary damages may be difficult to ascertain or may be an inadequate remedy. The Client therefore agrees that the Company will have the right, in addition to its other rights and remedies, to seek and obtain injunctive or other equitable relief for any breach or anticipated breach of clauses 5.14 and/or 5.15.

5.17      The Client warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Company under the Contract, and that the processing of that Personal Data by the Company for the purposes of and in accordance with the terms of the Contract will not breach any applicable laws (including the Data Protection Act 1998).

 

  1. Warranties, Liability and Indemnity:

6.1        Other than as provided in clause 3.1 and save for the conditions implied by section 2 of the Supply of Goods and Services Act 1982, all conditions, warranties and liabilities whatsoever whether express or implied, statutory or otherwise, are hereby expressly excluded.

6.2        Subject to the other provisions of these Conditions, the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly

 

 

by any delay in the  performance of the Services (even if caused by the Company’s negligence), nor shall any delay entitle the Client to terminate  the Contract unless such delay exceeds 180 days.

6.3        Nothing in these Conditions shall exclude or limit the liability of the Company:

(a)         for death or personal injury caused by the Company’s negligence; or

(b)        under section 2(3), Consumer Protection Act 1987; or

(c)         for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or

(d)        for fraud or fraudulent misrepresentation.

6.4        Subject to clause 6.3, in no event shall the Company be liable to the Client for any increased costs or expenses; for any loss of profits, business, contracts, revenues or anticipated savings; for any loss or corruption of or damage to any data, files or software; or for any special, indirect or consequential damages, in each case howsoever arising.

6.5        Subject to clauses 6.3 and 6.4, the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Company’s obligations hereunder shall be limited to the amount of the Charges paid by the Client.

6.6        The Client shall hold the Company harmless and keep the Company indemnified in full against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and

expenses) awarded against or incurred or paid by the Company as a result of or in connection with any claim made against the Company in respect of any liability, loss, damage, injury, cost or expense sustained by any third party to the extent that such liability, loss, damage, injury, cost or expense arises directly or indirectly from the Client’s instructions to the Company, or from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations hereunder, subject to the Company confirming such costs, charges and losses to the Client in writing.

 

  1. General:

7.1        No forbearance or indulgence granted by the Company to the Client shall in any way limit any right of the Company under these Conditions.

7.2        Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business.

7.3        The Client shall not be entitled to assign or sub-contract a Contract or any part of it without the prior written consent of the Company. The Company shall be entitled at its discretion to perform any of the obligations assumed by it and to exercise any of its rights granted to it under a Contract through any other company or entity.

7.4        Neither the Company nor the Client intends that any term of a Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

7.5        If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.

7.6        These Conditions shall be subject to and construed under the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the Courts of England and Wales for that purpose.