Terms & Conditions

1 Definitions and interpretation

1.2 In these Conditions, unless the context otherwise requires:1.2.1 a reference to the Contract includes these Conditions, the Quote, and their respective schedules, appendices and annexes (if any);

1.2.2 any clause, schedule or other headings in these Conditions are included for convenience only and shall have no effect on the interpretation of these Conditions;

1.2.3 a reference to a ‘party’ means either Winc Studio or the Client and includes that party’s personal representatives, successors and permitted assigns;

1.2.4 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;

1.2.5 a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;

1.2.6 a reference to a gender includes each other gender;

1.2.7 words in the singular include the plural and vice versa;

1.2.8 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;

1.2.9 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form including email);

1.2.10 without prejudice to the provisions of clause 15, a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of a party under the Contract;

1.2.11 without prejudice to the provisions of clause 15, a reference to legislation includes all subordinate legislation made from time to time under that legislation; and

1.2.12 a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.

2 Application of these conditions

2.1 These Conditions apply to and form part of the Contract between Winc Studio and the Client. They supersede any previously issued terms and conditions of purchase or supply save for those of the Quote.

2.2 These Conditions together with the terms and conditions in the Quote form the terms and conditions of the Contract between the Client and Winc Studio.

2.3 No variation of these Conditions or to a Quote or to the Contract, shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of the Client and Winc Studio respectively.

2.4 Each Quote given by Winc Studio to the Client shall be an offer to supply the Deliverables subject to the Contract which comprises these Conditions and the terms and conditions of the Quote.

2.5 The offer constituted by a Quote shall remain in effect and capable of being accepted by the Client for 30 Business Days from the date on which Winc Studio submitted the Quote, after which time the Price set out in the Quote may be subject to change and any such change in Price shall be updated in the Quote by Winc Studio and notified to the Client if the Client still wishes to accept the amended Quote.

2.6 There shall be no binding obligation to supply any Deliverables until the Client has made written acceptance of the Quote and these Conditions.

2.7 Marketing and other promotional material relating to the Deliverables are illustrative only and do not form part of the Contract.

3 Price

3.1 The price for the Deliverables shall be as set out in the Quote and subject to any Additional Costs and any other costs in accordance with this Agreement (the Price).

3.2 The Prices are inclusive of costs incurred in the posting of letters within the UK and of telephone calls made within the UK but are exclusive of:

3.2.1 other additional expenses such as delivery expenses including parcel delivery or use of couriers, and all travel, subsistence and accommodation expenses; and

3.2.2 VAT.

3.3 The Client shall pay any applicable VAT to Winc Studio on receipt of a valid VAT invoice.

3.4 Unless otherwise agreed, the Price in the Quote is ex-works, and where Winc Studio agrees to deliver any work, including any Initial Design Concept, Presentation or Goods, to a place other than Winc Studio’s premises, the Client will be liable to pay costs for transport, packaging and insurance in addition to the Price in the Quote. The Client shall pay also any delivery expenses, travel and other expenses referred to in clause 3.2.1 in addition to the Price in the Quote.

3.5 Any change in delivery dates, quantities or specifications for the Services which are requested by the Client, or any delay caused by any instructions from the Client or failure by the Client to give Winc Studio adequate information or instructions may increase costs. Such Additional Costs in accordance with the provisions of clause 3.7 shall be invoiced to the Client.

3.6 The Client acknowledges that Winc Studio’s Quote is based upon a timetable agreed between the Client and Winc Studio during the approval process in clauses 6.5, 6.6, 6.7 and 7.9. Winc Studio may increase the Price of the Services if the Client requests changes to this timetable in accordance with the provisions in clause 3.8 and invoice the Client accordingly.

3.7 The Client shall pay any costs incurred by Winc Studio during the provision of the Services on top of the Price set out in the Quote where such costs are incurred either at the request of the Client or are due to any delay caused by an instructions from the Client or failure by the Client or are, in the reasonable opinion of Winc Studio, required for the proper performance of the Services or are incurred by Winc Studio from third parties in relation to the provision of Services (Additional Costs). Additional Costs will be charged and invoiced to the Client as a separate and additional charge on top of the Price set out in the Quote. Winc Studio will use its best endeavours to mitigate such Additional Costs, and to communicate to the Client the possibility of such Additional costs as soon as Winc Studio becomes aware of them.

3.8 Winc Studio may increase the Prices with immediate effect by written notice to the Client where there is an increase in the direct cost to Winc Studio of supplying the relevant Deliverables (such as alteration of duties in accordance with the Client’s instructions, significant increase in the costs of labour, materials or any other increase in costs) which exceeds 2% and which is due to any factor beyond the control of Winc Studio.

4 Payment

4.1 Winc Studio shall invoice the Client for the Deliverables, partially or in full, at any time following delivery or completion of the Services.

4.2 Notwithstanding clause 4.1, Winc Studio retains the right to issue an invoice at any stage during the provision of the Services in relation to any Additional Costs or any other costs or charges. Such an invoice must be paid by the Client within 28 days’ of receipt of the invoice.

4.3 Notwithstanding clause 4.1, Winc Studio retains the right to require the Price to be paid in stages. In such a case, Winc Studio will invoice the Client at each stage.

4.4 The Client shall pay all invoices:

4.4.1 in full without deduction or set-off, in cleared funds within 28 days of the date of each invoice; and

4.4.2 to the bank account nominated by Winc Studio.

4.5 Time of payment is of the essence.

4.6 If either party fails to make payment in accordance with this Agreement the other party shall be entitled, in addition to any unpaid amount that should properly have been paid, to simple interest on that amount (accruing on a daily basis from the final date for payment until the date of actual payment, whether before or after judgment). Such interest shall be calculated at a rate of 8% per year above the Bank of England base rate which is current at the date the payment became overdue. It is agreed that the provisions of this clause constitute a substantial remedy for the purposes of section 9(1) of the Late Payment of Commercial Debts (Interest) Act 1998.

5 Credit limit

Winc Studio may set and vary credit limits from time to time and withhold all further supplies if the Client exceeds such credit limit.

6 Delivery and performance

6.1 Winc Studio may provide Pitching to the Client as part of its provision of Services.

6.2 The Client acknowledges that until a decision has been reached as to the Design Supplier to be used under this Agreement, any Pitching Design and any other document, idea or concept produced by the Consultancy during the Pitching process is Confidential Information and must not be presented or discussed with any third parties.

6.3 If the Client wishes to disclose any such Confidential Information as referred to in clause 6.2 to third parties in connection with the Pitching Process, the Client must first seek and gain the permission of Winc Studio. Whether or not Winc Studio grants its permission to the Prospective Client to disclose any such Confidential Information to a third party shall be entirely at the discretion of Winc Studio.

6.4 All reasonable costs of Pitching to the Client will be added to the Quote.

6.5 Winc Studio will provide the Client an initial design concept of the Deliverables for approval by the Client (Initial Design Concept). The Client will be required to submit its written approval of the Initial Design Concept in a timely manner to Winc Studio in writing prior to any further work in relation to the Services being carried out.

6.6 The Client acknowledges that the written approval of the Initial Design Concept provided under clause 6.5 will entitle Winc Studio to commence the Services in full and the preparation of the Presentation. This may include purchasing production materials, preparing proofs, engaging the services of third parties such as photographers and printers, and entering into contracts for other facilities necessary to perform the Services. Winc Studio is not liable for any errors or other mistakes in the Initial Design Concept which have been approved by the Client, except to the extent that such errors or mistakes could not reasonably have been identified by the Client at the time of approval.

6.7 Clients will receive a maximum of 3 draft proofs of the Presentation for review. If the Client wishes for more than 3 proofs, it must request such additional proofs from Winc Studio in writing. The Client acknowledges that Winc Studio retains sole discretion to determine how many draft proofs of the Presentation will be provided to the Client for review. Winc Studio is entitled to invoice the Client for the reasonable costs associated with the preparation and delivery of any additional proofs.

6.8 Winc Studio and the Client will work together to finalise the Deliverables. Winc Studio will use its best endeavours to take into account all reasonable requests of the Client during the approval process.

6.9 The Goods shall be delivered by Winc Studio, or its nominated carrier, to the Location on the date specified in the Order.

6.10 The Goods shall be deemed delivered on arrival only of the Goods at the Location by Winc Studio or its nominated carrier (as the case may be).

6.11 The Services shall be performed by Winc Studio as specified in the Quote and as otherwise agreed between the parties under the terms of this Agreement.

6.12 Winc Studio may deliver the Goods or perform the Services in instalments. Any delay or defect in an instalment shall not entitle the Client to cancel any other instalment.

6.13 Time is not of the essence in relation to the performance or delivery of the Deliverables. Winc Studio shall use its reasonable endeavours to meet estimated dates for delivery and performance, but any such dates are indicative only.

6.14 Winc Studio shall not be liable for any delay in or failure of performance caused by:

6.14.1 the Client’s failure to make the Location available;

6.14.2 the Client’s failure to provide Winc Studio with adequate instructions for performance or delivery or otherwise relating to the Deliverables;

6.14.3 Force Majeure.

6.15 If the Client fails to accept delivery of the Goods Winc Studio shall store and insure the Goods pending delivery, and the Client shall pay all costs and expenses incurred by Winc Studio in doing so.

7 Risk

Risk in the Goods shall pass to the Client on delivery.

8 Title

8.1 Title to the Goods shall pass to the Client once Winc Studio has received payment in full and cleared funds for the Goods.

8.2 Until title to the Goods has passed to the Client, the Client shall:

8.2.1 hold the Goods as bailee for Winc Studio;

8.2.2 store the Goods separately from all other material in the Client’s possession;

8.2.3 take all reasonable care of the Goods and keep them in the condition in which they were delivered;

8.2.4 insure the Goods from the date of delivery: (i) with a reputable insurer (ii) against all risks (iii) for an amount at least equal to their proportion of the Price (iv) noting Winc Studio’s interest on the policy;

8.2.5 ensure that the Goods are clearly identifiable as belonging to Winc Studio;

8.2.6 not remove or alter any mark on or packaging of the Goods;

8.2.7 inform Winc Studio immediately if it becomes subject to any of the events or circumstances set out in clauses 18.1.1 to 18.1.4 or 18.2.1 to 18.2.13; and

8.2.8 on reasonable notice permit Winc Studio to inspect the Goods during the Client’s normal business hours and provide Winc Studio with such information concerning the Goods as Winc Studio may request from time to time.

8.3 If, at any time before title to the Goods has passed to the Client, the Client informs Winc Studio, or Winc Studio reasonably believes, that the Client has or is likely to become subject to any of the events specified in clauses 18.1.1 to 18.1.4 or 18.2.1 to 18.2.13, Winc Studio may:

8.3.1 require the Client at the Client’s expense to re-deliver the Goods to Winc Studio; and

8.3.2 if the Client fails to do so promptly, enter any premises where the Goods are stored and repossess them.

9 Warranty

9.1 Winc Studio warrants that at the time of performance, the Deliverables shall:

9.1.1 conform in all material respects to any sample, their description and to the Specification;

9.1.2 be free from material defects in design, material and workmanship;

9.1.3 if Goods, be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and

9.1.4 if Services, be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II, s 13; and

9.1.5 any media on which the results of the Services are supplied shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.

9.2 The Client warrants that it shall in a timely manner provide Winc Studio with all relevant, full and accurate information as to the Client’s business and needs, and to that end the Client agrees to:

9.2.1 make all information reasonably requested by Winc Studio in relation to the provision of the Services available to Winc Studio;

9.2.2 provide a written brief of information in relation to the request for Services on the reasonable request of Winc Studio;

9.2.3 ensure that all facts given about a particular project and the Services to be provided by Winc Studio are accurate and in no way misleading or deceptive; and

9.2.4 co-operate fully with Winc Studio during the provision of the Services.

9.3 As the Clients’s sole and exclusive remedy, Winc Studio shall, at its option, correct, repair, remedy, re-perform or refund the Deliverables that do not comply with clause 9.1, provided that the Client:

9.3.1 serves a written notice on Winc Studio not later than five Business Days from delivery or performance in the case of defects discoverable by a physical inspection, or within a reasonable period of time from delivery or performance in the case of latent defects;

9.3.2 such notice specifies that some or all of the Deliverables do not comply with clause 9.1 and identifying in sufficient detail the nature and extent of the defects; and

9.3.3 gives Winc Studio a reasonable opportunity to examine the claim of the defective Deliverables.

9.4 The provisions of these Conditions shall apply to any Deliverables that are corrected, repaired, remedied or re-performed with effect from delivery or performance of those Deliverables.

9.5 Winc Studio shall not be liable for any failure of the Goods to comply with clause 9.1:

9.5.1 where such failure arises by reason of wear and tear, wilful damage, negligence, or could be expected to arise in the normal course of use of the Goods;

9.5.2 to the extent caused by the Client’s failure to comply with Winc Studio’s instructions in relation to the Goods, including any instructions on installation, operation, storage or maintenance;

9.5.3 to the extent caused by Winc Studio following any specification, instruction or requirement of or given by the Client in relation to the Goods;

9.5.4 where the Client modifies any Goods without Winc Studio’s prior written consent or, having received such consent, not in accordance with Winc Studio’s instructions; or

9.5.5 where the Client uses any of the Goods after notifying Winc Studio that they do not comply with clause 9.1.

9.6 Except as set out in this clause 9:

9.6.1 Winc Studio gives no warranty and makes no representations in relation to the Deliverables; and

9.6.2 shall have no liability for their failure to comply with the warranty in clause 10.1,
and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982 and ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted.

10 Anti-bribery

10.1 For the purposes of this clause 10 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.

10.2 Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable endeavours to ensure that:

10.2.1 all of that party’s personnel;

10.2.2 all others associated with that party; and

10.2.3 all of that party’s subcontractors;

involved in performing the Contract so comply.

10.3 Without limitation to clause 10.2, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.

10.4 The Client shall immediately notify Winc Studio as soon as it becomes aware of a breach or possible breach by the Client of any of the requirements in this clause 10.

10.5 Any breach of this clause 10 by the Client shall be deemed a material breach of the Contract that is not remediable and shall entitle Winc Studio to immediately terminate the Contract by notice under clause 18.1.1.

11 Anti-slavery

11.1 Winc Studio shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy.

11.2 The Client undertakes, warrants and represents that:

11.2.1 neither the Client nor any of its officers, employees, agents or subcontractors has:
(a) committed an offence under the Modern Slavery Act 2015 (an MSA Offence); or
(b) been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or
(c) is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;

11.2.2 it shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy;

11.2.3 it has implemented due diligence procedures to ensure compliance with the Modern Slavery Act 2015 and the Modern Slavery Policy in its business and supply chain, and those of its officers, employees, agents or subcontractors, which will be made available to Winc Studio on request at any time throughout the Contract;

11.3 The Client shall notify Winc Studio immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of the Client’s obligations under clause 11.2. Such notice to set out full details of the circumstances concerning the breach or potential breach of the Client’s obligations.

11.4 Any breach of clause 11.2 by the Client shall be deemed a material breach of the Contract and shall entitle Winc Studio to terminate the Contract with immediate effect.

12 Indemnity and insurance

12.1 The Client shall indemnify, and keep indemnified, Winc Studio from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by Winc Studio as a result of or in connection with the Client’s breach of any of the Client’s obligations under the Contract.

12.2 Except as expressly provided in these Terms and Conditions, the Client releases Winc Studio, its employees, agents, officers and any of its suppliers and subcontractors from, and indemnifies and holds harmless Winc Studio, its employees, agents, officers and any of its suppliers and subcontractors against, any and all claims, actions, losses, damages, expenses and any other liabilities of whatsoever nature (including any consequential or indirect loss), arising out of, or in connection with the provision of the Services or any other document or design, including but not limited to any Initial Design Concept, Presentation or any Deliverables whatsoever, whether used or provided alone or in conjunction with other designs or products or services.

12.3 The Client agrees to indemnify Winc Studio for any loss or any other damage, either direct or indirect, incurred by Winc Studio as a result of any request by the Client to amend or vary the approved Initial Design Concept once work on the Presentation has commenced.

12.4 The Client agrees to fully indemnify the Consultancy from any liability or any claim resulting from the Client not having obtained all the required permissions, licenses or other authorisations in relation to the Client Background Intellectual Property Rights or any other intellectual property rights in anything which the Client has provided to the Consultancy under this Agreement.

12.5 Winc Studio shall indemnify the Client from and against any losses, damages, liability, costs and expenses (including reasonable professional fees) incurred by it as a result of any action, demand or claim that use of the Deliverables infringes the Intellectual Property Rights of any third party (IPR Claim), provided that Winc Studio shall have no such liability if the Client:

12.5.1 does not notify Winc Studio in writing setting out full details of any IPR Claim of which it has notice as soon as is reasonably possible;

12.5.2 makes any admission of liability or agrees any settlement or compromise of the relevant IPR Claim without the prior written consent of Winc Studio;

12.5.3 does not let Winc Studio at its request and own expense have the conduct of or settle all negotiations and litigation arising from the IPR Claim at its sole discretion;

12.5.4 does not take all reasonable steps to minimise the losses that may be incurred by it or by any third party as a result of the IPR Claim;

12.5.5 does not, at Winc Studio’s request, provide Winc Studio with all reasonable assistance in relation to the IPR Claim (at the Client’s expense) including the provision of prompt access to any relevant premises, officers, employees, contractors or agents of the Client;

12.5.6 uses the Deliverables in combination with any other goods or services, which without such combination, no IPR Claim could or would have been made; and

12.5.7 if any liability or any claim results from the Client not having obtained all the required permissions, licenses or other authorisations in relation to any intellectual property, background or otherwise, supplied by, or owned by the Client, and provided by the Client to the Consultancy.

12.6 If any IPR Claim is made or is reasonably likely to be made, Winc Studio may at its option:

12.6.1 procure for the Client the right to continue receiving the benefit of the relevant Deliverables; or

12.6.2 modify or replace the infringing part of the Deliverables so as to avoid the infringement or alleged infringement, provided the Deliverables remain in material conformance to their Specification.

12.7 Winc Studio’s obligations under clause 12.5 shall not apply to Deliverables modified or used by the Client other than in accordance with the Contract or Winc Studio’s instructions. The Client shall indemnify Winc Studio against all losses, damages, liability, costs and expenses (including reasonable legal fees) incurred by Winc Studio in connection with any claim arising from such modification or use.

12.8 The Client may request in writing from the Consultancy permission to use the Intellectual Property in forms other than those in which it was supplied by the Consultancy under this Agreement. Winc Studio may, at its sole discretion, grant such permission.

12.9 The Client shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom or such other country by agreement in writing with Winc Studio to cover its obligations under the Contract. On request, the Client shall supply so far as is reasonable evidence of the maintenance of the insurance and all of its terms from time to time applicable.

13 Limitation of liability

13.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 12.

13.2 Subject to clauses 13.7 and 13.8, Winc Studio’s total liability shall not exceed the sum of the amount that has been paid already by the Client under this Agreement .

13.3 Subject to clauses 13.7 and 13.8, Winc Studio shall not be liable for consequential, indirect or special losses.

13.4 Subject to clauses 13.7 and 13.8, Winc Studio shall not be liable for any of the following (whether direct or indirect):

13.4.1 loss of profit;

13.4.2 loss or corruption of data;

13.4.3 loss of use;

13.4.4 loss of production;

13.4.5 loss of contract;

13.4.6 loss of opportunity;

13.4.7 loss of savings, discount or rebate (whether actual or anticipated);

13.4.8 harm to reputation or loss of goodwill.

13.5 Any error or omissions in any invoice or other document or information issued by Winc Studio to the Client, other than in the Quote, shall be subject to correction without any liability on Winc Studio’s part.

13.6 The Consultancy shall not have any liability to the Client resulting from the Client not having obtained all the required permissions, licenses or other authorisations in relation to the Intellectual Property Rights of anything supplied to the Consultancy by the Client.

13.7 The limitations of liability set out in clauses 13.1 to 13.4 shall not apply in respect of any indemnities given by either party under the Contract.

13.8 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:

13.8.1 death or personal injury caused by negligence;

13.8.2 fraud or fraudulent misrepresentation;

13.8.3 any other losses which cannot be excluded or limited by Applicable Law;

13.8.4 any losses caused by wilful misconduct.

14 Intellectual property

14.1 The Client acknowledges that the Consultancy owns all the Intellectual Property Rights in anything produced by the Consultancy as part of the Pitching process. The Client may only retain a Pitching Design or any other visuals or documents presented during the Pitching period on the basis that they will not be reproduced or used by the Client other than under the terms and conditions of the Contract without the express written permission of the Consultancy.

14.2 The Client acknowledges that until a decision has been reached as to the Design Supplier, any Pitching Design and any other document, idea or concept produced by Winc Studio during the Pitching process must not be presented or discussed with any third parties. The Client must notify Winc Studio if it wishes to disclose any such information to third parties that are connected to the Pitching process.

14.3 The Client acknowledges the confidential nature of the Pitching Design and the obligations under this Agreement placed upon the Client not to disclose Confidential Information to third parties in breach of this Agreement.

14.4 All Background Intellectual Property used in connection with this Agreement shall remain the property of the party who owns it or the third party who licenses it to that party as at the date of this Agreement. The Client shall grant the Consultancy a non-exclusive licence with no right to assign or sub-license to use the Client’s Background Intellectual Property to the extent necessary to enable the Consultancy to perform its role under this Agreement.

14.5 Any and all Foreground Intellectual Property shall be owned by the Consultancy.

14.6 Subject to the Licensee complying with its obligations under this Agreement, the Licensor grants the Licensee with effect from the date of this Agreement a licence to use the Licensed Intellectual Property Rights (the Licence), subject to the following conditions:

14.6.1 a non-exclusive, non-transferable, non-sublicenseable, fully paid-up, royalty-free license to use the Licensed Intellectual Property Rights within the Territory to the extent necessary to enable Company to make reasonable use of the Service Materials and the Services;

14.6.2 the Licence is non-transferable and therefore cannot be sublicensed;

14.6.3 the Licence relates to use of the Licensed Intellectual Property Rights in the Territory;

14.6.4 the Licensed Intellectual Property Rights may only be used in connection with the Licensee’s own business purposes, not as an outsourced service provider for another business;

14.6.5 once payment in full of the Fee is made to the Consultancy by the Company the Company may request from the Consultancy and, entirely at the discretion of the Consultancy, the Consultancy may grant to the Company a perpetual, non-exclusive, non-transferable, non-sublicenseable, royalty-free and irrevocable licence to use the Licensed Intellectual Property Rights to the extent only that is necessary to enable the Company to make reasonable use of the Services and Service Materials for the purposes of this Agreement.

14.7 If either party becomes aware that:

14.7.1 a third party may be infringing any Intellectual Property Rights in either the Foreground Intellectual Property or the Background Intellectual Property of the other party; or

14.7.2 proceedings have been commenced or threatened by any third party in which the validity or use of the Foreground Intellectual Property of the other party or the Background Intellectual Property of the other party is challenged or any application for it is opposed,

that party shall promptly notify the other party in writing and supply such assistance at the other party’s expense as the other party reasonably requires in order to counter the third party action in question.

15 Confidentiality and announcements

15.1 The Client shall keep confidential all Confidential Information of Winc Studio and of any Affiliate of Winc Studio and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:

15.1.1 any information which was in the public domain at the date of the Contract;

15.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;

15.1.3 any information which is independently developed by the Client without using information supplied by Winc Studio or by any Affiliate of Winc Studio; or

15.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.

except that the provisions of clauses 15.1.1 to 15.1.3 shall not apply to information to which clause 15.6 relates.

15.2 The Client acknowledges that it must not without express permission of Winc Studio disclose any Confidential Information to any third party. The Client must notify Winc Studio if it wishes to disclose any Confidential Information to any third party. The Client may disclose Confidential Information to any of its employees, agents and officers who need to know the relevant Confidential Information for the purposes of the enacting Agreement, provided that the Client shall ensure that each of its employees, agents and officers to whom Confidential Information is disclosed is made aware of its confidential nature and undertakes to comply with this clause 15 as if it were the Client.

15.3 If the Client decides to cancel the Contract, or the Contract is terminated, the Client must not use or disclose any Confidential Information at any time to any third party whatsoever and the Client will return to Winc Studio or, if requested by Winc Studio, destroy all materials relating to that Confidential Information including any copies in whatever form stored and shall not make any further use of that Confidential Information whatsoever.

15.4 This clause shall remain in force in perpetuity after termination of the Contract.

15.5 The Client shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.

15.6 To the extent any Confidential Information is Protected Data such Confidential Information may be disclosed or used only to the extent such disclosure or use is in compliance with and does not conflict with any provisions of clause 15.

16 Processing of personal data

16.1 The parties agree that the Client is a Controller and that Winc Studio is a Processor for the purposes of processing Protected Data pursuant to the Contract. The Client shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Client shall ensure all instructions given by it to Winc Studio in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with Data Protection Laws. Nothing in the Contract relieves the Client of any responsibilities or liabilities under any Data Protection Laws.

16.2 Winc Studio shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of the Contract.

16.3 The Client shall indemnify and keep indemnified Winc Studio against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a Data Protection Supervisory Authority) arising out of or in connection with any breach by the Client of its obligations under this clause 16.

16.4 Winc Studio shall:

16.4.1 only process (and shall ensure Winc Studio Personnel only process) the Protected Data in accordance with the schedule and the Contract (including when making any transfer to which clause 16.10 relates), except to the extent:
(a) that alternative processing instructions are agreed between the parties in writing; or
(b) otherwise required by applicable law (and shall inform the Client of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and

16.4.2 without prejudice to clause 18.1, if Winc Studio believes that any instruction received by it from the Client is likely to infringe the Data Protection Laws it shall promptly inform the Client and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.

16.5 Winc Studio shall implement and maintain the technical and organisational measures set out in Part C of the schedule to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.

16.6 Winc Studio shall:

16.6.1 not permit any processing of Protected Data by any Sub-Processor without the prior specific written authorisation of the Client;

16.6.2 prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this clause 16 (including those relating to sufficient guarantees to implement appropriate technical and organisational measures) that is enforceable by Winc Studio and ensure each such Sub-Processor complies with all such obligations;

16.6.3 remain fully liable to the Client under the Contract for all the acts and omissions of each Sub-Processor as if they were its own; and

16.6.4 ensure that all persons authorised by Winc Studio or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.

16.7 The Client authorises the appointment of the Sub-Processors listed in the schedule.

16.8 The Client shall reply to any communication from Winc Studio requesting any further prior specific authorisation of a Sub-Processor pursuant to clause 16.6.1 promptly and in any event within 10 Business Days of request from time to time. The Client shall not unreasonably withhold, delay or condition any such authorisation.

16.9 Winc Studio shall (at the Client’s cost):

16.9.1 assist the Client in ensuring compliance with the Client’s obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the processing and the information available to Winc Studio; and

16.9.2 taking into account the nature of the processing, assist the Client (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Client’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.

16.10 Winc Studio shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to any country or territory outside the United Kingdom or to any International Organisation without the prior written authorisation of the Client.

16.11 Winc Studio shall at the Client’s cost and expense refer to the Client all requests it receives for exercising any Data Subjects’ rights under Chapter III of the GDPR which relate to any Protected Data. It shall be the Client’s responsibility to reply to all such requests as required by applicable law.

16.12 Winc Studio shall, in accordance with Data Protection Laws, make available to the Client such information that is in its possession or control as is necessary to demonstrate Winc Studio’s compliance with the obligations placed on it under this clause 16 and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Client (or another auditor mandated by the Client) for this purpose (subject to a maximum of one audit request in any 12 month period under this clause 16.12).

16.13 On the end of the provision of the Services relating to the processing of Protected Data, at the Client’s cost and the Client’s option, Winc Studio shall either return all of the Protected Data to the Client or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires Winc Studio to store such Protected Data. This clause 16 shall survive termination or expiry of the Contract.

17 Force majeure

17.1 Winc Studio shall have no liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such the event causes a delay or failure in performance and when it ceases to do so. If the Force Majeure event continues for a continuous period of more than 30 days, Winc Studio may terminate the Contract by written notice to the other party without any obligation to provide the Client with any Deliverables which have not already been supplied to the Client notwithstanding the provisions of clauses 18.6.2 and 18.6.3.

17.2 Upon termination of the Contract under 18.1 the Client shall pay within 28 days Winc Studio for all the Goods and Services already provided to the Client up to the date of termination.

18 Termination

18.1 Winc Studio may terminate the Contract at any time by giving notice in writing to the Client if:

18.1.1 the Client commits a material breach of the Contract and such breach is not remediable;

18.1.2 the Client commits a material breach of the Contract which is not remedied within 14 >days of receiving written notice of such breach;

18.1.3 the Client has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within 30 days after Winc Studio has given notification that the payment is overdue; or

18.1.4 any consent, licence or authorisation held by the Client is revoked or modified such that the Client is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.

18.2 Winc Studio may terminate the Contract at any time by giving notice in writing to the Client if the Client:

18.2.1 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;

18.2.2 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if Winc Studio reasonably believes that to be the case;

18.2.3 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;

18.2.4 becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;

18.2.5 becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;

18.2.6 becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;

18.2.7 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;

18.2.8 has a resolution passed for its winding up;

18.2.9 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;

18.2.10 is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced;

18.2.11 has a freezing order made against it;

18.2.12 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title in those items;

18.2.13 is subject to any events or circumstances analogous to those in clauses 18.2.1 to 18.2.12 in any jurisdiction;

18.3 Winc Studio may terminate the Contract:

18.3.1 at any time by giving not less than 30 days’ written notice to the Client; and

18.3.2 Winc Studio may terminate the Contract by giving not less than 2 weeks’ notice in writing to the Client if the Client undergoes a change of Control.

18.4 The right of Winc Studio to terminate the Contract pursuant to clause 18.3.2 hall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to the Contract.

18.5 If the Client becomes aware that any event has occurred, or circumstances exist, which may entitle Winc Studio to terminate the Contract under this clause 18, it shall immediately notify Winc Studio in writing.

18.6 Termination or expiry of the Contract shall:

18.6.1 not affect any accrued rights and liabilities of Winc Studio at any time up to the date of termination; and

18.6.2 result in no obligation of Winc Studio to hand over any document or other Initial Design Concept, Presentation or any of the Deliverables that have not already been handed over to the Client or which Winc Studio is not contractually obliged already at the date of termination to its suppliers and/or third parties for the supply of those parts of the Deliverables which have not been delivered or performed at the date of termination; and

18.6.3 oblige the Client to pay for the Deliverables delivered or performed already at the date of termination or for any part of the Deliverables which have not been delivered or performed by the date of termination if Winc Studio is contractually obliged at the date of termination to its suppliers and/or third parties for the supply of those parts of the Deliverables which have not been delivered or performed at the date of termination.

18.7 The Client shall have the right to request in writing cancellation of the Order for the Deliverables or for any part of the Deliverables which have not yet been, in the case of Goods, delivered to or commissioned for the Client, and in the case of Services, performed for, the Client if cancellation would not breach Winc Studio’s contractual obligations to its suppliers and other third parties.

18.8 Subject to the provisions of clause 18.7, in relation to any Order cancelled or part-cancelled under clause 18.7, on receipt of validly issued and properly documented evidence, the Client shall pay for:

18.8.1 in respect of any Goods, that part of the price which relates to the Goods which at the time of cancellation have been delivered to, commissioned for, manufactured and ready for delivery to, in transit to the Client; and

18.8.2 in respect of any Goods, the costs of materials which Winc Studio has purchased to fulfil the Order for the Goods which cannot be used for other orders or be returned to Winc Studio’s supplier of those materials for a refund; and

18.8.3 in respect of any Services, that part of the Price that relates to the Services which, at the time of cancellation have been paid for or contractually committed by Winc Studio and cannot be cancelled; and

18.8.4 in the event of cancellation, payment is also required for the provision of the Initial Design Concept. The Client will be invoiced in relation to the labour and other reasonable costs and expenses required to produce such Initial Design Concept, regardless of whether or not such Initial Design Concept is used by the Client; and

18.8.5 any Additional Costs or other costs for which Winc Studio is committed already and/or which have been incurred by Winc Studio.

18.9 The Client will be invoiced for payment due under clause 18.8 and will pay any and all such invoices within 28 days of their receipt.

19 Notices

19.1 Any notice or other communication given by a party under these Conditions shall:

19.1.1 be in writing and in English;

19.1.2 be signed by, or on behalf of, the party giving it (except for notices sent by email); and

19.1.3 be sent to the relevant party at the address set out in the Contract

19.2 Notices may be given, and are deemed received:

19.2.1 by hand: on receipt of a signature at the time of delivery;

19.2.2 by Royal Mail Recorded Signed For post: at 9.00 am on the second Business Day after posting;

19.2.3 by Royal Mail International Tracked & Signed post: at 9.00 am on the fourth Business Day after posting; and

19.2.4 by email: on receipt of a delivery email from the correct address.

19.3 Any change to the contact details of a party as set out in the Contract shall be notified to the other party in accordance with clause 19.1 and shall be effective:

19.3.1 on the date specified in the notice as being the date of such change; or

19.3.2 if no date is so specified, 2 Business Days after the notice is deemed to be received.

19.4 All references to time are to the local time at the place of deemed receipt.

19.5 This clause does not apply to notices given in legal proceedings or arbitration.

19.6 A notice given under these Conditions is validly served if sent by email.

20 Cumulative remedies

The rights and remedies provided in the Contract for Winc Studio only are cumulative and not exclusive of any rights and remedies provided by law.

21 Time

Unless stated otherwise, time is of the essence for any date or period specified in the Contract in relation to the Client’s obligations only.

22 Further assurance

The Client shall at the request of Winc Studio, and at the Client’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.

23 Entire agreement

23.1 The parties agree that the Contract constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.

23.2 Each party acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.

23.3 Nothing in these Conditions purports to limit or exclude any liability for fraud.

24 Variation

No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, each party.

25 Assignment

25.1 The Client may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without Winc Studio’s prior written consent which it may withhold or delay at its absolute discretion.

25.2 Notwithstanding clause 25.1, the Client may perform any of its obligations and exercise any of its rights granted under the Contract through any Affiliate provided that it gives Winc Studio prior written notice of such subcontracting or assignment including the identity of the relevant Affiliate. The Client acknowledges and agrees that any act or omission of its Affiliate in relation to the Client’s rights or obligations under the Contract shall be deemed to be an act or omission of the Client itself.

26 Set off

26.1 Winc Studio shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Client under the Contract or under any other contract which Winc Studio has with the Client.

26.2 The Client shall pay all sums that it owes to Winc Studio under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

27 No partnership or agency

The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.

28 Equitable relief

The Client recognises that any breach or threatened breach of the Contract may cause Winc Studio irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to Winc Studio, the Client acknowledges and agrees that Winc Studio is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.

29 Severance

29.1 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.

29.2 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with the minimum such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

30 Waiver

30.1 No failure, delay or omission by Winc Studio in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.

30.2 No single or partial exercise of any right, power or remedy provided by law or under the Contract by Winc Studio shall prevent any future exercise of it or the exercise of any other right, power or remedy by Winc Studio.

30.3 A waiver of any term, provision, condition or breach of the Contract by Winc Studio shall only be effective if given in writing and signed by Winc Studio, and then only in the instance and for the purpose for which it is given.

31 Compliance with law

The Client shall comply with Applicable Law and shall maintain such licences, authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.

32 Conflicts within contract

32.1 If there is a conflict between:

32.1.1 the terms of the Quote and the Conditions, then the terms of the Conditions shall prevail.

33 Costs and expenses

The Client shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (and any documents referred to in it).

34 Third party rights

34.1 Except as expressly provided for in clause 34.2, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.

34.2 Any Affiliate of Winc Studio shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.

35 Dispute resolution

35.1 Any dispute arising between the parties out of or in connection with the Contract shall be dealt with in accordance with the provisions of this clause 35.

35.2 The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.

35.3 The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedure:

35.3.1 Within five Business Days of service of the notice, the contract managers of each of the parties shall meet to discuss the dispute and attempt to resolve it.

35.3.2 If the dispute has not been resolved within five Business Days of the first meeting of the contract managers, then the matter shall be referred to the chief executives (or persons of equivalent seniority) of each of the parties. The chief executives (or equivalent) shall meet within five Business Days to discuss the dispute and attempt to resolve it.

35.4 Until the parties have completed the steps referred to in clause 35.3, and have failed to resolve the dispute, neither party shall commence formal legal proceedings except that either party may at any time seek urgent interim relief from the courts.

36 Governing law

The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.

37 Jurisdiction

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

THE SCHEDULE

Part A

Winc Studio’s Details: Winc Studio Limited, a company registered in England and Wales with number 09985824 and registered office address 121 Brynland Avenue, Bristol BS7 9DZ.

Part B

Data processing details

Processing of the Protected Data by Winc Studio under the Contract shall be for the subject-matter, duration, nature and purposes and involve the types of Personal Data and categories of Data Subjects set out in this Part B of the schedule.

1 Subject-matter of processing:

The processing is needed in order to ensure that the Processor can effectively deliver the contract to provide the goods and services to the Client.

2 Duration of the processing:

For the duration of the contract the personal data will be held and, beyond that, it will only be held with the express permission of the data subject.

3 Nature and purpose of the processing:

The nature of the processing means any operation such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of data (whether or not by automated means). The purpose is to allow us to perform our contract as a graphic design agency.

4 Type of Personal Data:

Name, address, date of birth, NI number, telephone number, pay, images, biometric data.

5 Categories of Data Subjects:

The owners and employees of the company or organisation for whom we are performing the contract.

6 Specific processing instructions:

Gathering and use of personal data to allow the Agency to perform the contract with the Client.

Part B

Technical and organisational security measures

1. The Agency shall implement and maintain the following technical and organisational security measures to protect the Protected Data:

1.1. In accordance with the Data Protection Laws, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of the Protected Data to be carried out under or in connection with the Contract, as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Protected Data transmitted, stored or otherwise processed, the Agency shall implement appropriate technical and organisational security measures appropriate to the risk, including as appropriate those matters mentioned in Articles 32(1)(a) to 32(1)(d) (inclusive) of the GDPR.