2. STATEMENTS OF WORK

2.1. Scope of Work. The Supplier shall perform the Services as described in the individual Statement of Work documents that are agreed between the parties. Each Statement of Work will detail the specific Services to be provided, including but not limited to, development milestones, deliverables, and any other requirements as agreed upon.

2.2. Formation of SOW. Each Statement of Work must be in writing (either in the form of a purchase order or an e-mail exchange) and shall form a binding agreement upon acceptance by West9 Design.

2.3. Compliance with Agreement. All Services performed under any Statement of Work must be in compliance with these Terms and Conditions. In the event of a conflict between a Statement of Work and these Terms and Conditions, these Terms and Conditions shall prevail unless expressly stated otherwise in the Statement of Work.

2.4  Modifications. Any modifications or amendments to an agreed Statement of Work must be made in writing and signed by both parties. No verbal agreements or informal written communications shall be considered valid modifications to the Statement of Work.

2.5  Term. Each Statement of Work shall specify the term of the engagement for the Services to be provided.

2.6  No obligation. Neither the Supplier nor West9 Design are obligated to enter into subsequent Statements of Work.  The Supplier has the right to refuse any work offered by West9 Design.  West9 Design may use other service providers for similar work and is not engaging the Supplier on an exclusive basis.

3. SUPPLIER OBLIGATIONS

3.1. The Supplier shall:

3.1.1. provide the Services and the Deliverables in accordance with the applicable Statement of Work;

3.1.2. ensure that the Services and Deliverables will conform in all respects with the Statement of Work and that the Deliverables shall be fit for any purpose expressly or implicitly made known to the Supplier by West9 Design;

3.1.3. perform the Services with the highest level of care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade;

3.1.4. ensure that the Deliverables, and all goods, materials, standards and techniques used in providing the Services are of the best quality and are free from defects in workmanship, installation and design;

3.1.5. co-operate with West9 Design in all matters relating to the Services, and comply with West9 Design’s instructions;

3.1.6. before the date on which the Services are to start, obtain and maintain during the term of the relevant Statement of Work, all necessary licences and consents and comply with all relevant legislation in relation to the Services;

3.1.7. hold all West9 Design Materials in safe custody at its own risk, maintain such West9 Design Materials in good condition until returned to West9 Design, and not dispose of or use the West9 Design Materials other than in accordance with West9 Design's written instructions or authorisations;

3.1.8. The Supplier shall ensure that the Services are provided in accordance with any delivery dates set out in the applicable Statement of Work.  If the Supplier fails to meet the relevant deadlines, then (without prejudice to West9 Design's right to terminate the applicable Statement of Work and any other rights it may have), West9 Design may:

3.1.8.1 refuse to accept any subsequent performance of the Services under the relevant Statement of Work which the Supplier attempts to make;

3.1.8.2 purchase substitute services from elsewhere and reclaim from the Supplier any additional costs incurred as a result of procuring such services from a third party instead of the Supplier;

3.1.8.3 hold the Supplier accountable for any loss and additional costs incurred; and

3.1.8.4 have any sums previously paid by West9 Design to the Supplier in respect of the affected Services refunded by the Supplier.

3.1.9. In relation to the Supplier's personnel, the Supplier shall ensure that all personnel involved in the provision of the Services have suitable skills and experience to enable them to perform the tasks assigned to them, and that such personnel are in sufficient number to enable the Supplier to fulfil its obligations under these Terms and Conditions and any applicable Statement of Work.

4. WEST9 DESIGN OBLIGATIONS

4.1. West9 Design shall:

4.1.1. provide the Supplier with all necessary co-operation in all matters relating to the Services; and

4.1.2. provide to the Supplier all documents, information, items and materials required under a Statement of Work.

5. CHANGE CONTOL

5.1. General.  Any request to change the scope of the Services within a Statement of Work (a "Change Request") must be submitted in writing by the party requesting the change (the "Requesting Party") to the other party (the "Receiving Party"). The Change Request shall include a detailed description of the proposed change, including without limitation, the impact on the Services, Deliverables, any agreed milestones, the timetable for their performance, and the financial and commercial implications of the change.

5.2. Review of a Change Request.  Upon receipt of a Change Request, the Receiving Party shall review the proposed change and, within ten (10) business days, provide a written response to the Requesting Party that either (i) agrees to the Change Request as proposed, (ii) agrees to the Change Request subject to modifications agreed upon by the parties, or (iii) rejects the Change Request. If the Receiving Party proposes modifications to the Change Request, the Requesting Party shall, within five (5) business days of receiving the response, notify the Receiving Party in writing of its acceptance or rejection of the modifications.

5.3. Effective.  No Change Request shall be effective unless and until it has been agreed upon in writing by both parties. Each agreed Change Request shall constitute an amendment to this Agreement and shall be attached to and form part of the relevant Statement of Work.

5.4. Impact on Agreement.   Any Change Request agreed upon by the parties may result in adjustments to the Services, Deliverables, any agreed milestones, the timetable for their performance, and the commercial terms of this Agreement, including, without limitation, the fees and payment schedule. Such adjustments shall be documented in the written agreement of the Change Request.

5.5. Obligations. Unless otherwise agreed in writing, the Supplier shall continue to perform its obligations under these Terms and Conditions and any applicable Statement of Work until the Change Request is formally agreed upon by both parties.

5.6. Authority.  Each party warrants that the person signing any Change Request on its behalf has the authority to bind that party to the terms of the Change Request.

6. FEES AND PAYMENT TERMS

6.1. Fees.  In consideration of the provision of the Services by the Supplier, West9 Design shall pay the SoW Charges.

6.2 Payment terms.  West9 Design agrees to pay the Supplier the fees agreed in the applicable Statement of Work, in accordance with the payment terms set out in section 6.4 below.

6.3. Invoices.  The Supplier will submit invoices to West9 Design for its fees on completion and approval by West9 Design of the Services, or as otherwise agreed in the appliable Statement of Work.  The Supplier will include its bank details on all invoices.

6.4. Payment timings.  Any invoices submitted by the Supplier and approved by West9 Design will be paid within 14 days of the invoice date. 

7. INTELLECTUAL PROPERTY OWNERSHIP 

7.1. In relation to the West9 Design Materials:

7.1.1. West9 Design and its licensors shall retain ownership of all Intellectual Property Rights in the West9 Design Materials;

7.1.2. West9 Design grants to the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the West9 Design Materials for the term of the Agreement for the sole purpose of providing the Services to West9 Design;

7.1.3. The Supplier agrees to not distribute, sub-licence, sell, lend, lease or give any portion of the West9 Design Materials to any third parties, nor to use the West9 Design Materials for any other purpose other than the licence granted in section 7.1.2;

7.1.4. The Supplier will, upon completion of the applicable Statement of Work or termination of these Terms and Conditions, return to West9 Design all of the West9 Design Materials together with any modifications, adaptations, changes or improvements made by the Supplier; and

7.1.5. The Supplier is responsible for auditing, monitoring and controlling all copies of the West9 Design Materials that is distributed to its team members.

7.2 In relation to the Deliverables:

7.2.1. The Supplier assigns to West9 Design, with full title guarantee and free from all third-party rights, all Intellectual Property Rights in the Deliverables supplied under any applicable Statement of Work. This assignment shall take effect upon the creation of the respective Deliverables, ensuring that West9 Design acquires exclusive ownership of the Deliverables for all purposes.

7.2.2. The Supplier agrees to perform, at West9 Design's request and expense, all further acts and execute all documents which may be necessary to confirm the full scope of rights assigned to West9 Design. This includes, but is not limited to, any actions required for the registration, application, or protection of the assigned Intellectual Property Rights in any jurisdiction.

7.2.3. Furthermore, the Supplier shall ensure that all personnel, whether employees, contractors, or agents, involved in the creation of the Deliverables, waive any and all moral rights they may have in such Deliverables, to the extent allowable under applicable laws. The Supplier agrees to secure such waivers and provide them to West9 Design upon request.

7.2.4. This assignment is intended to ensure that West9 Design has full and exclusive ownership of, and rights to use, the Deliverables for any purpose without restriction, including but not limited to reproduction, modification, disclosure, transmission, publication, broadcasting, and posting in any media.

7.3. The Supplier:

7.3.1. warrants that the receipt, use and onward supply of the Services and the Deliverables by West9 Design shall not infringe the rights, including any Intellectual Property Rights, of any third party; and

7.3.2. shall indemnify West9 Design against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred or paid by West9 Design arising out of or in connection with any claim brought against West9 Design for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the receipt, use or supply of the Services and the Deliverables.

8. DELIVERY AND APPROVAL OF THE SERVICES/DELIVERABLES

8.1 Progress and timings.  During the provision of the Services, the Supplier agrees to:

8.1.1. provide West9 Design with regular updates on the provision of the Services and any Deliverables; and

8.1.2. use reasonable endeavours to provide West9 Design with the Services and any Deliverables by any agreed delivery dates (as set out in the applicable Statement of Work).

8.2 Notification of delays.  The Supplier agrees to notify West9 Design immediately if there are reasons to believe that the Services and/or Deliverables will be delayed or if it becomes aware of any problems related to the provision of their Services.  The parties will mutually agree in good faith on any adjustment to the timings for the delivery of the Services and/or Deliverables.

8.3. Approval.  West9 Design will review all Deliverables that are delivered by the Supplier to West9 Design.  If West9 Design determines, in its sole discretion, that any part of it falls below the standard expected, it will, within a reasonable period of time, notify the Supplier of such failures and set out the reasons for its failure.

8.4. Re-submissions. The Supplier will have a reasonable amount of time to fix any failures and to re-submit the Deliverable for approval by West9 Design. This process will be repeated until either (i) approval is given by West9 Design; or (ii) the Agreement is terminated by West9 Design in accordance with section 11.1.

9. REPRESENTATIONS AND WARRANTIES

9.1. Joint warranties.  Both parties represent and warrant that:

9.1.1 they are each duly organised and in good standing under the laws of the jurisdiction of their respective incorporation;

9.1.2. they each have the full right, power and authority to enter into and perform the obligations set out in these Terms and Conditions and any applicable Statement of Work;

9.1.3. they are each not subject to any voluntary or involuntary petition in bankruptcy, and do not currently contemplate filing any such voluntary petition and are not aware of any intention on the part of any other person to file such an involuntary petition against them;

9.1.4. the persons representing each party and signing these Terms and Conditions and any applicable Statement of Work, have the authority to bind the parties to this Agreement;

9.1.5. the execution and performance of these Terms and Conditions and any applicable Statement of Work does not and will not violate or interfere with any other agreement to which it is a party, and they are under no restrictions or prohibitions from any third parties with respect to their rights to execute and perform the Agreement;

9.1.6. during the Term of these Terms and Conditions and any applicable Statement of Work, they each will not enter into any other agreements or make any commitments which will interfere with the grant of rights set out in these Terms and Conditions, and any applicable Statement of Work, or the performance of their respective obligations to each other;

9.1.7. they each have sufficient resources, equipment and expertise to meet all of their respective obligations under these Terms and Conditions and any applicable Statement of Work; and

9.1.8 they will each carry out their obligations under these Terms and Conditions and any applicable Statement of Work with reasonable skill, care and due diligence and in accordance with good industry practice.

10. LIABILITY

10.1 Direct losses.  Subject to the indemnity in section 7.3.2, the parties maximum aggregate liability to the other party’s in connection with or in any manner related to these Terms and Conditions and any applicable Statement of Work (whether in an action in contract or tort or otherwise) will be limited to £1,000,000.

10.2. Indirect losses.  In no event will either party be liable to the other for any indirect, incidental, special or consequential damages, or damages in connection with loss of profits or revenue, or data misuse, incurred by either party, whether in an action in contract or tort (including negligence) or otherwise.

10.3. Notice and settlement of claims.  In the case of a claim by a third party, the relevant party will provide prompt written notice to the other parties of any such claim, and the party receiving the claim from the third party will be entitled to conduct the defence or settlement of the claim.  The party who is conducting the defence or settlement of the claim will provide reasonable progress reports to the other parties and all the parties agree to assist each other in defending or settling the claim.

10.4. Remedy for breaches. In the event, the Supplier breaches any of its representations and warranties, or if the failure of the Supplier to perform its obligations under the terms of these Terms and Conditions and any applicable Statement of Work, results in any of West9 Design’s services or products being deemed infringing or otherwise unlawful or in violation of any third party right, then the Supplier will be obliged, at its sole cost and expense and in a reasonable period of time, to do one of the following:

10.4.1. promptly fix or modify the applicable Deliverable so that West9 Design’s services and/or products ceases to be infringing or wrongful; or

10.4.2. promptly procure for West9 Design the right to continue providing its services and/or products.

10.5 Infringing product(s).  In the case of an infringing service and/or product, as described in section 10.4, then:

10.5.1. the Supplier will promptly reimburse West9 Design for all costs incurred in modifying its services and/or products to be not infringing;

10.5.2. West9 Design will be entitled to offset any SoW Charges or other payments due to the Supplier under these Terms and Conditions and any applicable Statement of Work against any sums owed by the Supplier to West9 Design; and

10.5.3. following the commencement of any claim covered by this section 10.5 in which West9 Design is named as a defendant, West9 Design will be entitled to withhold any SoW Charges payable to the Supplier by West9 Design pending the outcome of such litigation.

10.6. Excluded liability.  Except as expressly stated in these Terms and Conditions, all warranties and conditions, whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.

11. TERMINATION

11.1. Termination for material breach.  In the event of either party committing a material breach of these Terms and Conditions and any applicable Statement of Work, the non-breaching party shall give written notice to the breaching party to notify them of the breach.  The breaching party will have a period of thirty (30) days to remedy the breach.  If the breaching party fails to remedy the breach to the satisfaction of the non-breaching party in this remedy period, then the non-breaching party may terminate these Terms and Conditions and any applicable Statement of Work immediately upon expiry of the thirty (30) days remedy period, by giving written notice.

11.2 Termination for material breach of insolvency.  Either party may terminate these Terms and Conditions and any applicable Statement of Work immediately on written notice if the other party:

11.2.1 is in material breach of these Terms and Conditions and any applicable Statement of Work which is not remediable or, if remediable, fails to remedy the breach within thirty (30) days of being notified of it; or

11.2.2. becomes insolvent or takes any steps in any insolvency or liquidation process.

11.3 Effects of termination.  Upon termination of these Terms and Conditions and any applicable Statement of Work, for whatever reason, the following will apply:

11.3.1. the Supplier shall immediately deliver to West9 Design all Deliverables whether or not then complete, and return all West9 Design Materials. If the Supplier fails to do so, then West9 Design may enter the Supplier's premises and take possession of them. Until they have been delivered or returned, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with these Terns and Conditions;

11.3.2 the Supplier shall, if so requested by West9 Design, provide all assistance reasonably required by West9 Design to facilitate the smooth transition of the Services to West9 Design or any replacement supplier appointed by it including the assistance as set out in the relevant Statements of Work; and

11.3.3. The relevant sections of these Terms and Conditions that are intended to survive termination will remain in force.

12. CONFIDENTIALITY

12.1 Confidential information. West9 Design and the Supplier recognise that, in connection with the performance of these Terms and Conditions, each may disclose to the other information about the disclosing party's business or activities, which such party considers proprietary and confidential. All such proprietary and confidential information of each party (which shall include, without limitation, all business, financial and technical information of a party, identities of customers, clients or licensees, proprietary software code, current and future service and product information, any information about the existence of these Terms and Conditions and any applicable Statement of Work, these Terms and Conditions and any applicable Statement of Work and their contents, any trade secrets in relation to any West9 Design products or proprietary technology,  and any other information whether oral or written which is not generally known or available to the public) is hereinafter referred to as Confidential Information.

12.2. Confidentiality obligation. The party receiving Confidential Information shall maintain the confidential status for such Confidential Information, not to use any such Confidential information for any purpose other than the purpose for which it was originally disclosed to the receiving party, and not to disclose any of such Confidential Information to any third party unless (i) the written approval of the disclosing party is obtained; or (ii) it is required to be disclosed by law or a court of competent jurisdiction or any governmental or regulatory authority; (iii) if the information is already in, or comes into, the public domain otherwise than through any unauthorised disclosure or (iv) the information was available to the receiving party, on a non-confidential basis, prior to disclosure by the disclosing party; (v) the information was lawfully in the possession of the receiving party before the information was disclosed to the receiving party; or (vi) the information was developed by or for the receiving party independently of the information disclosed by the disclosing party.

12.3 Confidentiality term.  The obligations set out in this section 12 will continue for as long as the Confidential Information is of value to the disclosing party.

13 GENERAL PROVISIONS

13.1 Publicity.  The Supplier must not use West9 Design’s name or branding, or any of the Deliverables or Work provided to West9 Design in any promotional material, marketing material, similar material or announcement without the prior written consent of West9 Deisgn. 

13.2 Amendments.  These Terms and Conditions and any Statement of Work will not be amended or modified in any way, except by the mutual written agreement of the parties.

13.3 Relationship of parties.  This Agreement does not constitute and shall not be construed as a partnership or joint venture between the parties.  The parties agree that the Supplier is an independent contractor and nothing in this Agreement shall render the Supplier an employee, worker, agent or partner of West9 Design, and the Supplier shall not hold itself out as such.

13.4. Assignment.  Neither party shall have the right to assign or sublicence any part of this Agreement, or any of its rights or obligations contained within this Agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld.

13.5. Notices.  Any notice given to a party under or in connection with this Agreement shall be (i) in writing;  (ii) signed by an authorised signatory of the party giving it; and (iii) either sent by recorded post to the registered office address of the other party or via email to the email address as set out in the ‘Parties’ table in the Commercial Tables of this Agreement.  Any notice sent posting will be deemed delivered one business day after it has been recorded as delivered; and any notice sent by email will be deemed delivered at the time of transmission.

13.6. Force majeure.  No party will be responsible for delays, or failure of performance resulting from acts beyond the reasonable control of such party, including any act of God, civil commotion, war, rebellion, insurrection, riot, industrial dispute or lock-out, act of government, fire, explosion, lightening, storm, power failures, floods, earthquakes, and other natural disasters.  If such an event prevents or delays one party from performing its obligations under these Terms and Conditions, it must notify the other party as soon as possible and must use reasonable endeavours to recover from such position as soon as possible. 

13.7. Survival. Any provision of these Terms and Conditions which is intended to remain in force on or after the termination of these Terms and Conditions (or any applicable Statement of Work) will remain in full force after expiry or termination.

13.8. Illegality. If any provision of these Terms and Conditions is held to be illegal, void, invalid or unenforceable, the rest of these Terms and Conditions will remain valid and enforceable.

13.9. Waiver.  Any failure or delay by either party in exercising its rights under these Terms and Conditions will not be construed as a waiver of those rights at that time or at any time in the future.

13.10. Third-party rights. A person who is not a party to these Terms and Conditions may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999. The Supplier may not transfer, assign, or subcontract any of its rights or obligations under these Terms and Conditions, in whole or in part, to any third party.

13.11. Governing law and jurisdiction. These Terms and Conditions shall be governed by the laws of England and Wales and the English courts shall have the exclusive jurisdiction to settle any disputes in relation to it.