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1. 1. Interpretation
The following definitions and rules of interpretation apply in these Conditions.
Affiliate: means any subsidiaries or holding companies of Radancy, any entity which controls, is controlled by or is under common control with Radancy and/or a member of Radancy’s group of companies controlled and/or owned by TMP Worldwide Advertising & Communications LLC, d/b/a Radancy.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Client for the supply of the Services in accordance with clause 5 (Charges and payment).
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.
Contract: the contract between Radancy and the Client for the supply of Services in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Client: the person or firm who purchases Services from Radancy.
Client Default: has the meaning set out in clause 4.2.
Data Protection Legislation: up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter (i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
Deliverables: the deliverables set out in the Order produced by Radancy for the Client.
GDPR: General Data Protection Regulation ((EU) 2016/679).
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Client's order for Services as set out in the Client's purchase order form, the Client's written acceptance of a quotation by Radancy, a statement of work (SOW) signed by Radancy and the Client, or overleaf, as the case may be.
Services: the services, including the Deliverables, supplied by Radancy to the Client as set out in the Specification.
Specification: the description or specification of the Services provided [in writing] by Radancy to the Client.
Radancy: Associates in Advertising Limited, trading as Radancy, registered in England and Wales with company number 01976952 with its registered office at 200 Aldersgate Street, London EC1A 4HD.
Radancy Materials: has the meaning set out in clause 4.1(h).
2. Basis of contract
2.1 The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Radancy issues written acceptance of the Order or signs the relevant SOW at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by Radancy, and any descriptions or illustrations contained in Radancy 's 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.
2.4 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.
2.5 Any quotation given by Radancy shall not constitute an offer, and is only valid for a period of  Business Days from its date of issue.
3. Supply of Services
3.1 Radancy shall supply the Services to the Client in accordance with the Specification in all material respects.
3.2 Radancy shall use all reasonable endeavours to meet any performance dates specified in an Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Radancy reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Radancy shall notify the Client in any such event.
3.4 Radancy warrants to the Client that the Services will be provided using reasonable care and skill.
4. Client's obligations
4.1 The Client shall:
4.2 The Client hereby warrants, for the purposes of any Contract for the provision of Services entered into between the Client and Radancy, that, in entering into the Contract, there has not been (and/or there will not be), vis a vis the Client, a related transfer of an undertaking or a service provision change (within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“the Regulations”)) that would or will affect Radancy in any manner whatsoever (hereinafter referred to as a “relevant transfer”). Furthermore, it is a condition of each Contract that if, contrary to (and in breach of) the foregoing warranty, there has been a relevant transfer, Radancy shall not be obliged to employ or otherwise engage any employee or worker that has been the subject of the relevant transfer and the Client hereby agrees to indemnify Radancy against any and all liability whatsoever (including any liability in connection with the termination of the employment or engagement of the said employee or worker by Radancy) that Radancy may incur to the employee(s) or worker(s) in question as a consequence of, or pursuant to, the relevant transfer.
4.3 If Radancy 's 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):
5. Charges and payment
5.1 The Charges for the Services shall be set out in the Order.
5.2 Radancy shall invoice the Client on completion of the Services.
5.3 The Client shall pay each invoice submitted by Radancy:
5.4 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Radancy to the Client, the Client shall, on receipt of a valid VAT invoice from Radancy, pay to Radancy 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.
5.5 If the Client fails to make a payment due to Radancy under the Contract by the due date, then, without limiting Radancy 's remedies under clause 9, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.6 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.6 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. Intellectual property rights
6.1 Subject to (i) the Client paying in full Radancy’s Charges for producing the Deliverables and (ii) sub-clauses 6.2 and 6.3 below, the Intellectual Property Rights in the Deliverables shall vest solely and absolutely in the Client and Radancy shall co- operate with the Client and do everything necessary to give effect to such vesting.
6.2 All Intellectual Property Rights subsisting in and in relation to any software (“the Software”) comprised in the Deliverables and any related coding of whatever type (including, without limitation, any HTML, CGI, Perl, Java and other scripts and coding) which are created by RADANCY in the course of providing the Services:-
6.3 Where any Client Product incorporates any material(s) prepared or developed by a third party, Radancy shall, to the extent it is able to negotiate the same, obtain the Intellectual Property Rights in such material(s) solely and absolutely for the benefit of the Client. In the event that it is not able to obtain absolute rights of ownership in the same in favour of the Client, RADANCY shall obtain a non-exclusive, perpetual, royalty-free licence in favour of the Client from such third party to enable the Client to use the materials in question for the purposes required by the Client in accordance with the terms of the Contract.
6.4 The Client shall not sub-license, assign or otherwise transfer the rights granted in these Conditions.
6.5 The Client grants Radancy a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to Radancy for the term of the Contract for the purpose of providing the Services to the Client.
7. Data protection and data processing
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
7.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and Radancy is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
7.3 Without prejudice to the generality of clause 7.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to Radancy for the duration and purposes of the Contract.
7.4 Without prejudice to the generality of clause 7.1, Radancy shall, in relation to any Personal Data processed in connection with the performance by Radancy of its obligations under the Contract:
7.5 The Client consents to Radancy appointing an Affiliate as a third-party processor of Personal Data under the Contract. Radancy confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 7. As between the Client and Radancy, Radancy shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 7.
7.6 Either party may, at any time on not less than 30 days' notice, revise this clause 7 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
8. Limitation of liability: THE CLIENT'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
8.1 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
8.2 Radancy shall not be liable for any damage or loss suffered by the Client by reason of any breach by Radancy of any of the terms and conditions of the Contract (whether express or implied) arising other than by reason of Radancy’s negligence, in so far as such damage or loss exceeds the amount of the Charges received by Radancy from the Client pursuant to the Contract. (For the avoidance of doubt, the Charges, for this purpose, shall exclude any element of the same referable to third party costs or charges (e.g. media owner charges or photographers’ fees).)
8.3 Radancy shall not be liable, in respect of any event or related series of events, for any loss or damage due to its negligence, which is not otherwise limited under any other clause of the Contract, in so far as the same exceeds £3,000,000 in respect of tangible property and £1,000,000 in all other cases.
8.4 Subject to clause 8.1, neither party shall be liable to the other, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
8.5 Radancy has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.6 Unless the Client notifies Radancy that it intends to make a claim in respect of an event within the notice period, Radancy shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire 24 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
8.7 This clause 8 shall survive termination of the Contract.
9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 3 months' written notice.
9.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
9.3 Without affecting any other right or remedy available to it, Radancy may terminate the Contract with immediate effect by giving written notice to the Client if:
9.4 Without affecting any other right or remedy available to it, Radancy may suspend the supply of Services under the Contract or any other contract between the Client and Radancy if the Client fails to pay any amount due under the Contract on the due date for payment, the Client becomes subject to any of the events listed in clause 9.2(b) to clause 9.2(d), or Radancy reasonably believes that the Client is about to become subject to any of them.
10. Consequences of termination
10.1 On termination of the Contract:
10.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination [or expiry], 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.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.2 Assignment and other dealings.
11.4 Entire agreement.
11.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
11.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.9 Third party rights.
11.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
11.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.