Terms & Conditions

Terms of Business

The Engine Room Design Co Limited (trading as The Engine Room) incorporated and registered in England and Wales with company number 04301263 whose registered office is at York Mills, York Road, Mirfield, West Yorkshire WF14 9RR. (“ The Engine Room”).

1. Interpretation

1.1.The following definitions and rules of interpretation apply in these Terms and Conditions.

Affiliates
in relation to a party, means any entity that directly or indirectly controls, is controlled by, or is under common control with that party, for so long as that control exists;

Assigned Materials
all of the Final Deliverable excluding any part of the Final Deliverable (or parts of it), which are Third Party Materials in respect of which the Client has approved, under clause 13.4, the obtaining of a licence, as opposed to an assignment;

Business Day
a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;

Client’s Brand Guidelines
the Client’s guidelines (if any) for the use of the Trade Marks, as they may be amended by the Client from time to time and notified to The Engine Room;

Client’s Minimum Commercial Purposes
use by the Client and its licensees and assigns of the Deliverables as approved in accordance with clause 10 in the media and territory and for the period specified in the Proposal or otherwise contemplated by the parties;

Client’s Property
any and all materials, documents, records, research, photography, logos, designs, software or other property (including all IP Rights therein) belonging or licensed to the Client and/or any of its Affiliates, which are provided to The Engine Room by or on behalf of the Client (including copies of the Client Brand Guidelines);

Confidential Information
confidential information of a party includes:

a. all information (however recorded or preserved) disclosed by a party or its Personnel to the other party or its Personnel before, on or after the date of these Terms and Conditions, relating to the business, affairs, clients, suppliers, plans, intentions or market opportunities of the disclosing party (or any of its Affiliates); and the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or any of its Affiliates); and

b. all documents or physical materials created by or on behalf of the receiving party that are based upon, derived from, or include any information disclosed by, the disclosing party or its Personnel;

Confidential Information does not include any information that:

c. is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Personnel in breach of clause 14);

d. was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;

e. the parties agree in writing is not confidential or may be disclosed; or

f. is developed by or for the receiving party independently of the information disclosed by the disclosing party;

Data Protection Requirements
the Data Protection Act 2018 and any regulations or secondary legislation, as amended or updated from time to time;

Deliverable
all copy, layouts, artwork, storyboards, scripts, presentations, drawings, documents, charts, graphics, photographs, films and/or other materials created or produced by or on behalf of The Engine Room for the Client in the course of providing the Services, on any media (whether any media exist at the start of any Proposal or are subsequently developed). The Deliverables shall include all items that are identified in a Proposal;

Expenses
reasonable expenses including travel accommodation and substance expenses of any of The Engine Room’s Personnel; printing, photocopying, reproduction, presentation; research material including visual reference library books, magazines, samples; and mailing and courier charges;

Fees
any fees for the Services, as identified in any Proposal;

Final Deliverable
the deliverable specified in the Proposal as the last Deliverable to be supplied to the Client;

Hourly Rate
The Engine Room’s hourly rate as notified to the Client and amended from time to time

IP 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, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property, 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;

Personnel
officers, employees, consultants, agents, representatives and advisers (including, in relation to The Engine Room, any key agency personnel identified in the Proposal);

Project
the advertising campaign, website design, corporate writing and/or design of annual reports and accounts produced by The Engine Room pursuant to the Proposal;

Proposal
a plan for the provision of strategic brand consultancy, design and/or communication services formulated by The Engine Room that is signed by duly authorised representatives of both parties in accordance with clause 4.4;

Services
the strategic brand consultancy, design and/or communication services to be provided by The Engine Room to the Client as set out in each Proposal;

Territory
those countries in which the Services are to be provided as set out in each Proposal. The Territory shall include websites and other globally accessible media to the extent that they are specifically targeted at persons located in such countries;

Third Party Fees
fees payable by The Engine Room to third parties relating to the provision of the Services which are not included in the Fees and are not Expenses;

Third Party Materials
any work or materials authored, created or performed by a third party and either commissioned for, or used in relation to, the Services, including library images;

Trade Marks
the registered trade marks and trade mark applications, and all unregistered trade marks and logos, specified in a Proposal by the Client and/or notified by the Client to The Engine Room from time to time in writing;

VAT
value added tax chargeable under the Value Added Tax Act 1994.

1.2.A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.3.The Schedules form part of these Terms and Conditions and shall have effect as if set out in full in the body of these Terms and Conditions. Any reference to these Terms and Conditions includes the Schedules.

1.4.A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5.Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.6.A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.7.A reference to writing or written includes faxes.

1.8.Any obligation in these Terms and Conditions on a person not to do something includes an obligation not to agree or allow that thing to be done.

2. Appointment of The Engine Room

2.1.The Client may request The Engine Room to provide, and The Engine Room shall provide to the Client, design and/or communication services in the Territory.

2.2.All Proposals shall be governed by and subject to these Terms and Conditions. By requesting a draft work proposal in accordance with clause 4, the Client agrees to be bound by the terms of these Terms and Conditions.

2.3.In the event of inconsistency or conflict between these Terms and Conditions and any Proposal, the terms of these Terms and Conditions shall take precedence to the extent of the conflict or inconsistency only.

3. Term

3.1.Where any Proposal is accepted in accordance with clause 4.4 or 4.5, a contract shall immediately be created and subsist in accordance with these Terms and Conditions. Each Proposal shall create a separate contract between the parties.

3.2.Each contract shall commence on the acceptance of a Proposal in accordance with clause 4.4 or 4.5 and shall (subject to earlier termination under clause 19) terminate automatically on acceptance of the Final Deliverable and payment of all outstanding sums.

4. Proposal

4.1.Where the Client wishes The Engine Room to make a Proposal to undertake Services, the Client shall discuss with The Engine Room the strategic brand consultancy, design and/or communication services required and the relevant Territory (“ Discussions”).

4.2.As soon as is practicable following Discussions, The Engine Room shall submit to the Client a Proposal in writing, for approval in accordance with clause 4.4.

4.3.A Proposal will include details of the Services required, the Territory for which the services will be required, the deliverables including the Final Deliverable, the materials to be provided by the Client, and a proposed budget for the provision of the Services, including details of Fees and anticipated Third Party Fees and Expenses.

4.4.The Client shall, within 20 Business Days of receipt of the Proposal, notify The Engine Room in writing whether the Client:

4.4.1.approves the Proposal;

4.4.2.wishes modifications to be made to the draft Proposal (giving details); or

4.4.3.rejects the Proposal and requires The Engine Room to provide a new Proposal.

4.5.The Engine Room shall make any modifications to the Proposal requested by the Client under clause 4.4.2, or develop a new Proposal if requested to do so by the Client under clause 4.4.3, as appropriate, promptly following receipt by The Engine Room of the relevant request from the Client, and resubmit the modified or new Proposal to the Client for approval in accordance with clause 4.4.

4.6.Once a Proposal has been approved by the Client in writing, the Proposal shall immediately become a contract specifying the Services to be provided, the Fee to be paid and all other specific contractual deliverables for the purposes of these Terms and Conditions, and shall be binding on the parties and shall form part of, and be governed by the provisions of these Terms and Conditions.

5. Amendment to a Proposal

5.1.If, at any time, the Client requests a material change to a Proposal, this shall be deemed a Change Notice.

5.2.On receipt of a Change Notice The Engine Room may:

5.2.1.confirm that the changes contained in the Change Notice shall be implemented; or

5.2.2.elect not to implement any requested change in a Change Notice but instead to provide a revised Proposal to the Client.

5.3.In any event, The Engine Room shall confirm receipt of a Change Notice within 10 Business Days, stating the anticipated effect that the change will have on the Proposal including, but not limited to, any agreed timetable for delivery and/or implementation and/or Fees and/or anticipated Third Party Fees and Expenses.

5.4.The Client shall be responsible for The Engine Room’s Fees incurred in consequence of the issue of a Change Notice by the Client at the Hourly Rate or as otherwise agreed in writing.

5.5.The Engine Room may at any time serve a Change Notice on the Client in respect of any changes necessitated by:

5.5.1.the unavailability of Third Party Materials;

5.5.2.the substantial increase in the cost of Third Party Materials or Third Party Fees or Expenses;

5.5.3.changes in legal or regulatory requirements.

6. Performance of Services

6.1.In consideration for the payment of the Fees by the Client, The Engine Room shall perform the Services for, and provide the Deliverables to, the Client.

6.2.The Engine Room shall, and shall procure that each of its Personnel shall, perform the Services in a professional manner, in accordance with:

6.2.1.the provisions of these Terms and Conditions and the accepted Proposal and any agreed Change Notice(s);

6.2.2.the Client’s Brand Guidelines; and

6.2.3.reasonable written instructions of the Client from time to time.

7. Client Obligations

7.1.The Client shall co-operate with The Engine Room and shall provide to The Engine Room, at The Engine Room’s request, such information concerning the Client, the Client’s requirements in respect of the Services and the Project to which the Services relate as is reasonably necessary to enable The Engine Room to perform the Services.

7.2.Unless a specific time frame for the Client’s response is specified, the Client shall respond reasonably promptly to any request by The Engine Room for information or approval.

8. Fees and Expenses

8.1.In consideration for the provision of the Services in accordance with these Terms and Conditions, the Client shall pay the Fees to The Engine Room.

8.2.The Fees do not cover the provision of Services outside the Territory, or any services other than the Services. If any additional services are requested, the level of remuneration for them will be separately agreed by the parties, or if not so agreed, at the Hourly Rate.

8.3.The Client shall reimburse The Engine Room for all Third Party Fees, which have been approved by the Client in advance in writing. The Client shall reimburse The Engine Room for reasonable Expenses actually incurred by The Engine Room.

8.4.The Engine Room may invoice the Client for the Fees at such times and/or in such instalments as are set out in each Proposal.

8.5.The Engine Room may invoice the Client for the Third Party Fees and Expenses monthly in arrears.

9. Payment

9.1.Except as otherwise agreed between the parties, the Client shall pay all invoices submitted by The Engine Room within 30 days of receipt of that invoice by the Client, provided that the invoice sets out The Engine Room’s VAT invoice details.

9.2.All sums payable under these Terms and Conditions:

9.2.1.are exclusive of any VAT or any other sales tax or duties, which where applicable shall be payable by the Client to The Engine Room in addition; and

9.2.2.shall be paid in Sterling to the credit of The Engine Room’s bank account, details of which shall be notified to the Client as and when necessary.

9.3.Notwithstanding clause 9.4, if the Client does not pay The Engine Room for the Services in accordance with this clause 9, The Engine Room may suspend the Services with immediate effect until the Client has paid The Engine Room the outstanding amounts. The Engine Room will contact you to notify you of this.

9.4.If the Client fails to make any payment due to The Engine Room under these Terms and Conditions by the due date for payment, then the Client shall pay interest on the overdue amount at the rate of 5% per annum above the Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.

10. Approvals and Authority of Deliverables

10.1.Once a Proposal has been agreed by the parties in accordance with clause 4, The Engine Room shall commence work and will subsequently submit to the Client, and/or any of the Client’s Affiliates as the Client may specify to The Engine Room, materials for the Project, including, but not limited to, copy, layouts, artwork, storyboards (including concept artwork) and scripts, for written approval.

10.2.Unless a period of time is specified by The Engine Room, the Client will use its reasonable endeavours to provide written approval or an update to The Engine Room in accordance with any timeframe in the approved Proposal or otherwise on a timely basis on receipt of individual Deliverables produced by or on behalf of The Engine Room.

11. Compliance of Project and Deliverables with the Law

11.1.The Engine Room shall ensure that each Project and the Final Deliverable (excluding the Client’s Property) and their publication or otherwise making available to the public, in all material respects as delivered by The Engine Room and in accordance with the plans therefore as agreed between the Client and The Engine Room, shall:

11.1.1.Comply with all applicable laws, regulations, industry standards and codes of practice in the Territory; or

11.1.2.Not infringe the IP Rights or proprietary rights of any third party.

11.2.If either The Engine Room or the Client becomes aware that there is risk that any Project or Deliverable is not in compliance with clause 11.1, each shall promptly notify the other, and, without prejudice to any other right or remedy of the Client or The Engine Room, The Engine Room shall make any modifications which may be necessary to remedy that defect in the Deliverables or Project. Any modifications shall be at The Engine Room’s cost unless the problem was due to the Client’s act or omission (and/or to any error in the Client’s Property and/or any information provided by the Client to The Engine Room in relation to the relevant Project) and, in relation to the Deliverables, provided the Deliverables are unaltered since delivery by The Engine Room.

11.3.If the Client becomes aware that there is a risk that any Project or Deliverable is not in compliance with clause 11.1, it must give The Engine Room all information and assistance it may reasonably require and allow The Engine Room complete control over the litigation and settlement of any action or claim.

11.4.The Client warrants that The Engine Room’s possession and use of the Client’s Property in the exercise of The Engine Room’s obligations under these Terms and Conditions and the publication of any Final Deliverable shall:

11.4.1.Comply with all applicable laws, regulations, industry standards and codes of practice in the Territory;

11.4.2.Not infringe the IP Rights or proprietary rights of any third party.

11.5.The Client shall indemnify The Engine Room against all damages, losses and expenses (including reasonable legal expenses) arising as a result of any action or claim against The Engine Room, directly or indirectly arising (in whole or in part) out of a breach by the Client of clause 11.4.

12. Data Protection

12.1.The Engine Room shall at all times comply with its obligations under Data Protection Requirements to ensure that personal data it controls or processes remains confidential. Personal data will only be used for a permitted purpose and for a reasonable time, subject to any legal or regulatory requirements, will be deleted or corrected within a reasonable time following a written request to The Engine Room.

12.2.The Engine Room may use data it controls or processes in connection with the Client to create or update records held by The Engine Room relating to any matter(s), including without limitation for the purpose of product, market or credit analysis, and statistical compilation. The Engine Room will not transfer personal data out of the European Union without prior consent. Nor will The Engine Room disclose personal data to third parties without first obtaining the consent of the Client unless there is a technical, legal or regulatory reason for not doing so.

12.3.In relation to any Client The Engine Room may make enquiries at any time with credit reference agencies, which will keep a record of such enquiry whether or not credit is granted.

12.4.Where credit is granted, The Engine Room may also disclose details about the Client’s account with The Engine Room and the Client’s conduct of the account to such agency or to other agencies or to debt collection agencies. This information may be searched by credit grantors and used and given out in assessing applications for future credit facilities and for debt collection, fraud prevention and other purposes.

12.5.In Conditions 12.2 and 12.3 above, references to ” the Client” shall be deemed to include (but without limitation) officers, employees, contractors and agents in relation to which The Engine Room receives personal data arising out of or in connection with The Engine Room’s dealings with the Client and references to “The Engine Room” shall be deemed to include its Affiliates. The Client may request that The Engine Room provides a statement of how any personal data has been used within a reasonable time so that compliance may be audited.

12.6.The Engine Room shall take appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss and destruction of, or damage to, personal data.

12.7.Where, independently of the processing of the Client’s personal data by The Engine Room, any Services are used by a Client as a controller or processor of data acquired from or concerning any third party, the Client accepts full responsibility for compliance with all applicable legal, regulatory and contractual requirements. The Engine Room accepts no liability for any improper or unauthorised holding, storage and processing of such data by the Client. In the event that any such use gives rise to any third party claim against The Engine Room for loss, damage or expense, the Client agrees to indemnify The Engine Room in respect of all losses and expenses so-incurred. The Client shall assist The Engine Room in meeting its obligations under English law and regulation, in particular, obligations relating to security of processing, the notification of personal data breaches and data protection impact assessments.

12.8.The Client warrants that where it passes personal data to The Engine Room as a data controller or processor it shall have entered into agreements with its customers and suppliers which are compliant with its obligations pursuant to the Data Protection Requirements.

13. Ownership of IP Rights

13.1.Subject to approval of the Client under clause 10.2 of the Final Deliverable and payment of the Fees and any Third Party Fees and Expenses, The Engine Room shall irrevocably, unconditionally and absolutely assign to the Client, with full title guarantee, and without restriction, all right, title and interest in and to all existing and future IP Rights (including future copyright and design right) subsisting in or relating to all Assigned Materials whether created, developed or produced before, on or after the Commencement Date including the right to bring, make, oppose, defend, appeal and obtain relief in respect of any proceedings, claims or actions for infringements, or any other cause of action arising from ownership of the Assigned Material whether occurring before on or after the date of assignment. For the avoidance of doubt, the assignment under this clause 13.1 shall take effect from the date on which the relevant Assigned Material was or is created, developed or produced.

13.2.It is the intention of the parties that:

13.2.1.the Client shall own all Third Party Materials comprised in Deliverables, where an assignment of such materials is available on commercially reasonable terms which have been approved by the Client in accordance with clause 10; and

13.2.2.where no assignment of Third Party Materials is available on commercially reasonable terms the Client shall receive a direct licence of such materials for the Client’s Minimum Commercial Purposes or such wider purposes as The Engine Room and the Client may agree, in accordance with clause 13.3.

13.3.The Engine Room shall not incorporate and/or use Third Party Materials in any Deliverable unless The Engine Room has obtained the prior written consent of the Client to do so. The Engine Room shall give the Client reasonable prior notice of its intention to include any such Third Party Material and at the same time it may notify the Client in writing:

13.3.1.whether an assignment to the Client of the relevant Third Party Material can be obtained and the cost of obtaining it;

13.3.2.if no assignment of the relevant Third Party Material can be obtained or cannot be obtained for a reasonable cost, the cost of obtaining a licence of such materials for the Client’s Minimum Commercial Purposes and any such wider purposes as the Client may have notified to The Engine Room.

13.4.Following receipt of The Engine Room’s notice under clause 13.3, the Client shall notify The Engine Room in writing of whether inclusion of the relevant Third Party Material is approved, and whether The Engine Room is required to obtain an assignment (if available) or a licence, and if so, the extent of such licence required and the approved cost thereof.

13.5.The Client grants The Engine Room a non-exclusive, non-transferable, royalty-free licence to use the Client’s Property (including its Trade Marks) solely to the extent necessary to enable The Engine Room to provide the Services during the Term and for marketing and publicity under clause 25.

14. Confidentiality

14.1.Each party shall keep the other party’s Confidential Information confidential and shall not:

14.1.1.use such Confidential Information except for the purpose of exercising or performing its rights and obligations under these Terms and Conditions (“ Permitted Purpose”); or

14.1.2.disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause.

14.2.A party may disclose the other party’s Confidential Information to those of its Personnel and its subcontractors’ Personnel who need to know such Confidential Information for the Permitted Purpose, and the Client may disclose The Engine Room’s Confidential Information to its Affiliates and its Affiliates Personnel, provided that:

14.2.1.it informs such Personnel of the confidential nature of the Confidential Information prior to disclosure; and

14.2.2.at all times, it is responsible for the compliance of such Personnel with the confidentiality obligations set out in this clause.

14.3.A party may disclose Confidential Information to the extent required by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible.

15. The Engine Room Personnel

15.1.The Engine Room warrants and represents to the Client that The Engine Room is, and shall remain throughout the term of each Proposal, the employer of all individuals who may work for The Engine Room in providing the Services, and The Engine Room shall be solely responsible for the remuneration, insurance and other obligations in respect of all these individuals.

15.2.It is the parties’ intention that neither the commencement nor the termination of any of the Services will give rise to a relevant transfer pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (“TUPE Regulations”).

16. Anti-Bribery

16.1.The Engine Room shall:

16.1.1.comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“ Relevant Requirements”); and

16.1.2.have, and shall maintain in place throughout the term of each Proposal its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements.

16.2.The Client shall:

16.2.1.comply with all Relevant Requirements; and

16.2.2.have, and shall maintain in place throughout the term of each Proposal its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements.

17. Limitation of Liability

17.1.Nothing in these Terms and Conditions shall limit or exclude The Engine Room’s or the Client’s liability for death or personal injury caused by its negligence, or the negligence of its Personnel or subcontractors; or fraud or fraudulent misrepresentation.

17.2.Subject to clause 17.1, The Engine Room shall have no liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, sales, business, or revenue, business interruption, loss of anticipated savings, goodwill or reputation or for any indirect or consequential loss arising under or in connection with these Terms and Conditions.

17.3.Subject to clauses 17.1 and 17.2, The Engine Room’s total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with these Terms and Conditions shall be limited to the Fees paid and payable by the Client under the Proposal to which the claim relates.

18. Ownership, Custody and Insurance

18.1.The Client’s Property shall, at all times be and remain, as between the Client and The Engine Room, the exclusive property of the Client.

18.2.Title to physical Deliverables prepared for the Client by The Engine Room shall pass to the Client on creation of the relevant Deliverable following its approval under clause 10 and payment of the Fees, Third Party fees and Expenses.

19. Termination

Without affecting any of its rights or remedies, either party may terminate these Terms and Conditions immediately by giving the other party written notice of immediate termination if:

19.1.the other party commits a material breach of any term of these Terms and Conditions and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or

19.2.the other party suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply; or

19.3.the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or

19.4.a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company);

19.5.an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given, or an administrator is appointed, over the other party (being a company);

19.6.any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 19.2 to clause 19.6 (inclusive);

19.7.the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

19.8.there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).

20. Consequences of Termination

20.1.On expiry or termination of these Terms and Conditions (for any reason):

20.1.1.The Engine Room shall immediately cease all further performance of the Services;

20.1.2.The Engine Room shall immediately cease all further use of the Client’s Property;

20.1.3.The Engine Room shall be entitled to invoice the Client for all outstanding properly incurred Fees, Third Party Fees and Expenses, which shall be payable by the Client in accordance with the provisions of clause 9;

20.1.4.the Client shall pay to The Engine Room any sums as are payable by The Engine Room to any third party under any legally binding commitment relating to the provision of the Services that was entered into by The Engine Room, before the date of expiry or termination, with the Client’s consent;

20.1.5.each party shall return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information;

20.1.6.each party shall erase all the other party’s Confidential Information from its computer systems (to the extent possible);

20.1.7.The Engine Room shall deliver to the Client (or any third party specified by the Client), promptly, in accordance with the Client’s instructions, all of the Client’s Property, in its possession or control as at the date of termination or expiry; and

20.1.8.the Client shall reimburse The Engine Room the reasonable costs actually incurred by The Engine Room in providing any assistance in enabling a transfer of the Services to the Client or a third party.

20.2.Termination of these Terms and Conditions for any reason shall not affect the accrued rights or remedies of either party existing as at the date of that termination. Clauses which expressly or by implication survive termination of the agreement shall continue in full force and effect.

21. Force Majeure

Neither party shall be in breach of these Terms and Conditions nor liable for delay in performing, or failure to perform, any of its obligations under these Terms and Conditions if such delay or failure result 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 one month, the party not affected may terminate these Terms and Conditions by giving 30 days’ written notice to other party.

22. Notices

22.1.Any notice or other communication required to be given to a party under or in connection with this contract shall be in writing, and shall be delivered by hand or sent by pre-paid first-class post or other next Business Day delivery service providing proof of postage, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.

22.2.Any notice or communication shall be deemed to have been received if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address, or if sent by fax or email, at 9.00 am on the next Business Day after transmission, or otherwise at 9.00 am on the second Business Day after posting.

22.3.This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

23. Miscellaneous

23.1.Each party represents and warrants to the other that it has the authority and requisite corporate power to enter into these Terms and Conditions without obtaining the consent of any third party.

23.2.If any provision or part-provision of these Terms and Conditions 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 these Terms and Conditions.

23.3.No failure or delay by a party to exercise any right or remedy provided under these Terms and Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

23.4.These Terms and Conditions constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.

23.5.Each party acknowledges that in entering into these Terms and Conditions it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in these Terms and Conditions.

23.6.Nothing in this clause shall limit or exclude any liability for fraud.

23.7.No variation of these Terms and Conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

23.8.These Terms and Conditions is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract or deal in any other manner with any or all of its rights and obligations under these Terms and Conditions without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).

24. No Partnership

Nothing in these Terms and Conditions is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties. .

25. Announcements and Publicity

No party shall make, or permit any person to make, any public announcement, communication or circular (announcement) concerning these Terms and Conditions without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed) except that:

25.1.The Engine Room may publicise the fact that it works as a design agency for the Client and use any Final Deliverable for marketing and publicity purposes; and

25.2.either party may make an announcement which is required by law or any governmental or regulatory authority (including, without limitation, any relevant securities exchange), or by any court or other authority of competent jurisdiction, always provided that the party required to make the announcement shall promptly notify the other parties and shall make all reasonable attempts to agree the contents of the announcement before making it.

26. Third-Party Rights

No third party has or shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of these Terms and Conditions. Nothing in these Terms and Conditions shall confer, or purport to confer, on any other third party any benefit or the right to enforce any provision of these Terms and Conditions.

27. Governing Law and Jurisdiction

27.1.These Terms and Conditions 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.

27.2.The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms and Conditions or its subject matter or formation (including non-contractual disputes or claims).