Terms and conditions

Interpretation

1. The definitions and rules of interpretation in this clause apply in these terms and Conditions.

   Contract: the Client’s purchase order and the Supplier’s acceptance of it under clause 3.

   Client: the person, firm or company who purchases Services from the Supplier.

   Client’s Project Manager: the Client’s manager for the Project appointed in accordance with clause 5.1(a).

   Deliverables: all products and materials developed by the Supplier in relation to the Project in any media, including, without limitation, computer programs, data, diagrams, artwork, designs, drawings, websites, apps, reports and specifications (including drafts).

   Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

   Pre-existing Materials: materials which existed before the commencement of the Project belonging to either party and including all materials belonging to the Client that it supplies to the Supplier in order for the Supplier to perform the Services.

   Project: the project as described in the Project Plan.

   Project Milestone: a date by which a part of the Project is estimated to be completed, as set out in the Project Plan.

   Project Plan: the detailed plan describing the Project and setting out the estimated timetable (including Project Milestones) and responsibilities for the provision of the Services by the Supplier in accordance with the Contract.

   Services: the services to be provided by the Supplier under the Contract (including the Project Plan).

   Supplier: Tokyo Technologies Ltd t/a Tokyo Digital, a company incorporated in England and Wales with company number 11508425 whose trading address is at 81 Rivington Street, London EC2A 3AY, UK and registered office is at Stone House, Fulwood Park, Liverpool L17 5AG, UK.

   Supplier’s Project Manager: the Supplier’s manager for the Project, appointed in accordance with clause 4.7.

   VAT: value added tax chargeable under English law for the time being and any similar additional tax.

2. Headings do not affect the interpretation of these Conditions.

Application of Conditions

These Conditions apply to and be incorporated in the Contract to the exclusion of any other inconsistent terms or any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

Effect of Purchase Order

The Client’s purchase order constitutes an offer by the Client to purchase the Services specified in it on these Conditions; accordingly, the Supplier’s written acknowledgement of the purchase order form, or the Supplier’s commencement or execution of work pursuant to the purchase order, shall establish a contract for the supply and purchase of those Services on these Conditions.

Supplier’s Obligations

1. The Supplier shall provide the Services with reasonable skill and care and use reasonable endeavours to manage and complete the Project, and to deliver the Deliverables to the Client, in accordance in all material respects with the Project Plan.
2. Unless otherwise stated, in the applicable Project Plan, any charges quoted for the “design” stage of the Services shall include only one round of amendments requested by the Client. Any additional amendments requested by the Client will be charged in accordance with the Supplier’s standard daily fee rates as amended from time to time or at a fixed cost, whichever is agreed between the parties.
3. The Supplier shall use reasonable endeavours to meet the performance dates specified in the Project Plan, but such time is not of the essence of this Contract.
4. If the Supplier’s performance of its obligations under the Contract is delayed by any act or omission of the Client or the Client’s agents, sub-contractors or employees (including, but not limited to, delays in Client responses to requests from the Supplier for clarification or more information in relation to the Project), the Supplier shall not be liable for failing to meet the performance dates set out in the Project Plan and these shall be extended accordingly and any additional costs incurred by the Supplier as a result of the delay shall be agreed between the parties. The Client shall not unreasonably withhold or delay giving its agreement to any such additional costs notified by the Supplier.
5. Where the Project Plan includes the development or creation of a mobile application which is required to be submitted to the relevant application operator (iOS or Android), for approval before it can be launched on the platform, any timescales provided by the Supplier are estimates only and the parties acknowledge and agree that acceptance on to the relevant platform is entirely at the discretion of the application platform operator. The Supplier is therefore not liable for any related delays whatsoever, including where the approval process results in any missed Project Milestones or any other deadlines set out in the Project Plan.
6. Where the Project Plan includes the development or creation of a website, the parties acknowledge and agree that search engine performance rankings are set entirely at the discretion of the search engine operator and the Supplier therefore has no liability whatsoever in relation to search engine performance rankings.
7. The Supplier shall appoint the Supplier’s Project Manager who shall have authority to contractually bind the Supplier on all matters relating to the Project. The Supplier’s Project Manager may be replaced from time to time where necessary in the interests of the Supplier’s business.
8. The Supplier shall not be liable for events that are outside of its control including but not limited to changes to or failure of a third party’s systems, processes or licensing arrangements.
9. Warranty:
   • For a period of 30 days from the date on which the Services are capable of being used operationally by the Client (the “Warranty Period”) the Supplier ensures that the Services will conform in all material respects with any descriptions, standards and specifications set out in the Project Plan.
   • In the event of any non-conformance with paragraph 4.9 (a) above (“Non-Conformance”) being reported to the Supplier within the Warranty Period which has arisen due to the fault of the Supplier, there shall be no additional charge to the Client for work undertaken by the Supplier to remedy such Non-Conformance. If any Non-Conformance is reported outside of the Warranty Period, all work undertaken by the Supplier to remedy such Non-Conformance shall be charged at the Supplier’s standard daily rate fees as amended from time to time or as otherwise agreed in writing by the parties.
   • The warranty in this clause 4.9 does not cover any Non-Conformance that has arisen due to the acts or omissions of any party other than the Supplier. This includes, but is not limited to, any Non-Conformance that has arisen in relation to, or due to changes or updates to, third party software. All work undertaken by the Supplier to remedy such Non-Conformance arising from third party software or changes to the same shall be charged at the Supplier’s standard daily rate fees as amended from time to time or as otherwise agreed in writing by the parties.

Client’s Obligations

1. The Client shall:
   • co-operate with the Supplier in all matters relating to the Project and appoint the Client’s Project Manager, who shall have the authority to contractually bind the Client on matters relating to the Project;
   • provide in a timely manner such access to the Client’s premises, materials and data, as is requested by the Supplier and necessary for performance of the Services;
   • provide in a timely manner such information as the Supplier may request, and ensure that such information is accurate in all material respects; and
   • be solely responsible for obtaining and complying with all third party licences that the Supplier advises it are necessary for the performance of the Services or use of the Deliverables, unless agreed otherwise in writing by the Supplier.
2. If the Supplier’s performance of its obligations under the Contract is prevented by any act or omission of the Client or the Client’s agents, sub-contractors or employees, the Client shall pay to the Supplier on demand all reasonable costs incurred by it resulting from that prevention subject to the Supplier confirming such costs to the Client in writing.

Charges & Payment

1. The total price for the Services shall be the amount set out in the Project Plan. The total price shall be paid to the Supplier (without deduction or set-off) in instalments as set out in the Project Plan on its achieving the corresponding Project Milestone. On achieving a Project Milestone, the Supplier shall invoice the Client for the charges that are then payable, together with expenses and the costs of materials (and VAT, where appropriate), calculated as provided in clause 6.2.

2. The charges contained in the Project Plan exclude VAT, which the Supplier shall add to its invoices at the appropriate rate.

3. The Client shall pay each invoice submitted to it by the Supplier in full, and in cleared funds, within 30 days of receipt.

4. Without prejudice to any other right or remedy that the Supplier may have, if the Client fails to pay the Supplier on the due date the Supplier may:

   • charge interest on such sum from the due date for payment at the annual rate of 2% above the base lending rate from time to time of Barclays Bank PLC, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
   • suspend all Services until payment has been made in full.

5. Time for payment shall be of the essence of the Contract.

6. All payments payable to the Supplier under the Contract shall become due immediately on termination of the Contract, despite any other provision. This clause is without prejudice to any right to claim for interest under the law, or any such right under the Contract.

7. The Supplier may, without prejudice to any other rights it may have, set off any liability of the Client to the Supplier against any liability of the Supplier to the Client.

Client’s Pre-Existing Materials

1. Where the Client provides Pre-existing Materials to the Supplier for its use to perform the Services, such Pre-existing Materials must adhere to the following content standards and designs.
2. Copy must be within certain character limits and adhere to a certain layout which the Supplier will specify to the Client in advance where required;
   • images and videos must be a certain size and in a certain format which the Supplier will specify to the Client in advance where required; and
   • all Client Pre-existing Materials must be of the quality standard requested by the Supplier.
3. Where Pre-existing Materials provided by the Client do not comply with clause 7.1, the Supplier may, at its discretion, alter the format of such Pre-existing Materials and additional costs for the same will be incurred by the Client, either in accordance with the Supplier’s standard daily fee rates as amended from time to time or at a fixed cost, whichever is agreed between the parties.

Intellectual Property Rights

1. All Pre-existing Materials provided by each party to the other and all Intellectual Property Rights therein shall remain the property of the party that provided them. The Client grants the Supplier a non-exclusive licence to use the Pre-existing Materials belonging to the Client for the sole purpose of providing the Services to the Client.
2. The Client warrants that it has obtained all relevant permissions and rights for the use of any Pre-existing Materials that it provides that are owned by, or were otherwise created by, a third party.
3. The Client agrees to fully indemnify and hold the Supplier harmless from any and all claims for Intellectual Property infringement that may arise out of the Client’s breach of clause 8.2.
4. The Supplier shall retain all Intellectual Property Rights in the Deliverables created by it under the Contract until all charges under the Contract are paid in full by the Client.
5. Upon receipt by the Supplier of all sums due to it under the Contract in full and cleared funds, the Supplier assigns to the Client all Intellectual Property Rights in relation to strategy, designs and materials created under the agreement, except for underlying source code (see clause 8.6).
6. All Intellectual Property Rights in underlying source code (including but not limited to libraries, modules, scripts, algorithms and data functions) shall remain the property of the Supplier. On receipt by the Supplier of all sums due to it under the Contract in full and cleared funds, the Supplier grants to the Client free of charge a non-exclusive, irrevocable, worldwide licence to use the Intellectual Property Rights in the underlying libraries of code to such extent as is necessary to enable the Client to make reasonable use of the Deliverables and the Services as is envisaged by the parties.

Confidentiality & Supplier’s Property

1. The Supplier and the Client shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes, initiatives and Pre-existing Materials which are of a confidential nature and have been disclosed by the other party, together with any other confidential information concerning the other party’s business, affairs, products, customers, suppliers, pricing structures, plans and market intentions which it may obtain. Each party shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know it for the purpose of discharging its obligations under the Contract, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Supplier and the Client.
2. Clause 9.1 above shall not apply to any information that:
   • is or becomes generally available to the public other than as breach of these Conditions;
   • was available to a party on a non-confidential basis prior to disclosure;
   • was, is or becomes available to a party on a non-confidential basis from a person who, to that party’s knowledge, is not bound by a confidentiality agreement with the other party or otherwise prohibited from disclosing the information; or
   • the parties agree in writing is not confidential or may be disclosed.
3. This condition 9 shall survive termination of the Contract, however arising.

Limitation of Liability

1. The following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client arising under or in connection with the Contract, including liability in contract, tort (including negligence, misrepresentation, restitution or otherwise).
2. All warranties, Conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
3. Nothing in these Conditions excludes the liability of the Supplier:
   • for death or personal injury caused by the Supplier’s negligence; or
   • for fraud or fraudulent misrepresentation.
4. Subject to clause 10.2 and clause 10.3:
   • the Supplier shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for loss of profits; or loss of business; or depletion of goodwill or similar losses; or loss of anticipated savings; or loss of goods; or loss of contract; or loss of use; or loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
   • the Supplier’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 Contract shall be limited to the lesser of the price paid for the Services under the Project Plan to which the liability relates or £2 million.

Termination

1. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may, without liability to the other, terminate the Contract with immediate effect by giving [written notice] to the other party if:
   • the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
   • the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
   • the other party ceases, or threatens to cease, to trade; or
   • the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy; or
2. Without affecting any other right or remedy available to it, the Supplier may terminate this agreement with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment.
3. On termination of the Contract for any reason:
   • the Client shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Client immediately on receipt;
   • each party shall return all of the others Pre-existing Materials and the Client shall return any Deliverables which have not been fully paid for. Until they have been returned, the holding party shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
   • the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
   • clauses which expressly or by implication have effect after termination shall continue in full force and effect.

Force Majeure
The Supplier shall have no liability to the Client under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.

Waiver

1. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
2. A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
3. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

Severance

1. If any provision of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

Entire Agreement

1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in the Contract.

Variation
No variation of the Contract shall be effective unless it is in writing and signed by both parties (or their authorised representatives)

Assignment

1. The Client shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
2. The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

Third Party Rights
The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

Notices
Any notice under the Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address as set out in the Contract, or such other address as may have been notified by that party for such purposes. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not during business hours, at 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

Governing Law & Jurisdiction

1. The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England.
2. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).