Terms and conditions of service

THE CLIENT'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 7 (LIMITATION OF LIABILITY)

1. INTERPRETATION

The following definitions and rules of interpretation apply in these Conditions:

1.1 Definitions:

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 Listening Heads 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 Listening Heads.
Client Default: has the meaning set out in clause 4.2.
Deliverables: the deliverables set out in the Order produced by Listening Heads for the Client.
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.
Listening Heads: Listening Heads Limited registered in England and Wales with company number 10100906.
Listening Heads Materials: has the meaning set out in clause 4.1(h).
Order: the Client's written acceptance of Listen Heads Quote.
Services: the services, including the Deliverables, supplied by Listening Heads to the Client as set out in the Specification.
Specification: the description or specification of the Services provided in writing by Listening Heads to the Client.
Quote: each and any estimate provided by Listening Heads to the Client.

1.2 Interpretation

A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms
A reference to writing or written includes email.

2. BASIS OF CONTRACT

The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
The Order shall only be deemed to be accepted when Listening Heads issues written acceptance of the Order at which point, and on which date the Contract shall come into existence (Commencement Date).
Any samples, drawings, descriptive matter or advertising issued by Listening Heads, and any descriptions or illustrations contained in Listening Heads’ presentations or website 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.
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.
Any quotation given by Listening Heads shall not constitute an offer and is only valid for a period of 30 Business Days from its date of issue.

3. SUPPLY OF SERVICES

Listening Heads shall supply the Services to the Client in accordance with the Specification in all material respects.
Listening Heads shall use all reasonable endeavours to meet any performance dates specified in any quotation provided by Listening Heads, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
Listening Heads 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 Listening Heads shall notify the Client in any such event.
Listening Heads warrants to the Client that the Services will be provided using reasonable care and skill.

4. CLIENT'S OBLIGATIONS

The Client shall:

ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
cooperate with Listening Heads in all matters relating to the Services;
provide Listening Heads, its employees, agents, consultants and subcontractors, with access to the Client's premises, office accommodation and other facilities as reasonably required by Listening Heads;
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obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
comply with any additional obligations as set out in the Specification.

2. Listening Heads’ 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):
without limiting or affecting any other right or remedy available to it, Listening Heads shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays Listening Heads’ performance of any of its obligations;
Listening Heads shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Listening Heads’ failure or delay to perform any of its obligations as set out in this clause 4.2; and
the Client shall reimburse Listening Heads on written demand for any costs or losses sustained or incurred by Listening Heads arising directly or indirectly from the Client Default.

5. CHARGES AND PAYMENTS

Subject to this clause 5, the Charges for the Services shall be as set out in the Quote.
Listening Heads shall be entitled to charge additional fees for any extra work, costs and/or expenses it incurs due to additional instructions or amendments to the original instructions issued by the Client following Listening Heads acceptance of the Order, or due to any other cause beyond the control of Listening Heads. Such modifications shall be charged at Listening Heads' normal hourly rates as set out in the Quote. All work produced at the Client’s request, whether experimental or otherwise, will be charged.
The Charges shall be inclusive of the number of meetings between Listening Heads and the Client as specified in the Quote. Any additional meetings between Listening Heads and the Client will be charged in addition to the Charges at Listening Heads' standard hourly rates as specified in the Quote. If a number of meetings are not specified in the Quote, one meeting held at a London location shall be included in the Charges.
In addition to the Charges, the Client shall reimburse Listening Heads for all reasonable out-of-pocket expenses, actually and properly incurred by Listening Heads in performing the Services. Such expenses shall include, without limitation, hotel and travel expenses, telephone calls, prints, courier and delivery expenses and photocopies.
Project related costs incurred by Listening Heads for items including, without limitation, prints, copywriting, designs, photography and typesetting provided to the Client at the Client’s request or which are, at the discretion of Listening Heads, part of the normal requirements of a project, will be charged in addition to the Charges at Listening Heads' standard rates as set out in the Quote.
In addition to the Charges, Listening Heads shall be entitled to charge the Client for any costs it incurs as a result of insufficient or inadequate information being provided by the Client to Listening Heads or the Client’s failure to perform any of its obligations as required under clause 4.1 above.
Listening Heads shall invoice the Client on an interim monthly basis at the end of each month until completion of the Services.
The Client shall pay each invoice submitted by Listening Heads:
within 30 days of the date of the invoice and
in full and in cleared funds to a bank account nominated in writing by Listening Heads, and time for payment shall be of the essence of the Contract.
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 Listening Heads to the Client, the Client shall, on receipt of a valid VAT invoice from Listening Heads, pay to Listening Heads 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.
If the Client fails to make a payment due to Listening Heads under the Contract by the due date, then, without limiting Listening Heads 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 judgement. 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%.
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

All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by Listening Heads.
Subject to all Charges being paid in full by the Client, Listening Heads grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables (excluding materials provided by the Client) for the purpose of receiving and using the Services and the Deliverables in its business.
The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 6.2.
The Client grants Listening Heads a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to Listening Heads for the term of the Contract for the purpose of providing the Services to the Client.
The Client shall indemnify Listening Heads against all direct and indirect loss and damage Listening Heads may suffer (including, without limitation, all legal fees and loss of profits) arising from or in connection with any claim made against Listening Heads in relation to any alleged infringement of any Intellectual Property Rights provided that such claim arises from the use by Listening Heads of any information, inventions, ideas, designs, artwork, copy or other material provided by the Client to Listening Heads pursuant to the Order.

7. LIMITATION OF LIABILITY: THE CLIENT'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
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Subject to clause 7.1, Listening Heads’ total liability to the Client shall not exceed the total charge for the Services. Listening Heads’ total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
This clause 7.3 sets out specific heads of excluded loss:
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Listening Heads 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 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.
Unless the Client notifies Listening Heads that it intends to make a claim in respect of an event within the notice period, Listening Heads 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 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
This clause 7 shall survive termination of the Contract.

8. TERMINATION

Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party one months' written notice.
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:
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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), 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;
the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
Without affecting any other right or remedy available to it, Listening Heads may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Contract on the due date for payment.
Without affecting any other right or remedy available to it, Listening Heads may suspend the supply of Services under the Contract or any other contract between the Client and Listening Heads 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 8.2(b) to clause 8.2(d), or Listening Heads reasonably believes that the Client is about to become subject to any of them.

9. CONSEQUENCES OF TERMINATION

On termination of the Contract:
the Client shall immediately pay to Listening Heads all of Listening Heads' outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Listening Heads shall submit an invoice, which shall be payable by the Client immediately on receipt;
the Client shall return all of Listening Heads’ Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then Listening Heads may enter the Client's premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
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.
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.

10. GENERAL

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.
Assignment and other dealings
Listening Heads may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Listening Heads.
Confidentiality
Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, Clients, clients or suppliers of the other party, except as permitted by clause 10.3(b).
Each party may disclose the other party's confidential information:
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Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
Entire agreement
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.
Each party acknowledges that in entering into the Contract it does not rely on, and 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.
Nothing in this clause shall limit or exclude any liability for fraud.
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).
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.
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.
Notices
Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by by email to the address specified in the Quote.
Any notice or communication shall be deemed to have been received:
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This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
Third party rights. 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.
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.
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.

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