1. Interpretation
The following definitions and rules of interpretation apply in this agreement.
1.1 Definitions
Business Day: A day, other than a Saturday, Sunday, or public holiday in Romania, when banks are open for business. Charges: The sums payable for the Services, as set out in the Order. Customer: The customer placing the Order. Control: Has the meaning given in Article 2(1) of Law No. 31/1990 regarding companies, as amended, and the term change of Control shall be construed accordingly. Customer Materials: All documents, information, items, and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Supplier in connection with the Services, including the items provided pursuant to clause 5.1(d). Deliverables: Any output of the Services to be provided by the Supplier to the Customer as requested by the Customer in accordance with clause 3.4 below, and any other documents, products, and materials provided by the Supplier to the Customer in relation to the Services. Intellectual Property Rights: Patents, rights to inventions, copyright and related rights, trademarks, business names, and domain names, rights in trade dress, goodwill, and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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. Order: The Customer’s order for Services, as submitted via the Website. Services: The creative design services to be provided by the Supplier as set out in the Order. Supplier: New Media Sign SRL. VAT: Value added tax or any equivalent tax chargeable in Romania. Website: The Supplier’s website from time to time, currently located at designcloud.app.
1.2 Clause, schedule, and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate, or unincorporated body (whether or not having separate legal personality).
1.4 The schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the schedules.
1.5 A reference to a company shall include any company, corporation, or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.8 This agreement shall be binding on, and inure to the benefit of, the parties to this agreement and their respective personal representatives, successors, and permitted assigns, and references to any party shall include that party’s personal representatives, successors, and permitted assigns.
1.9 A reference to a statute or statutory provision is a reference to it as amended, extended, or re-enacted from time to time.
1.10 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.11 A reference to writing or written includes email.
1.12 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.13 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.
2. Commencement and Duration
2.1 This agreement shall commence on the date on which the Order is placed and shall continue, unless terminated earlier in accordance with clause 11 (Termination), for the following periods:
(a) Monthly Subscription: For a period of one month, and thereafter shall automatically renew for successive periods of one month, unless either party gives to the other not less than seven (7) days’ written notice of its intention to terminate this agreement at the end of the first one-month period, or any successive one-month period.
(b) Three-Month Subscription: For a period of three (3) months, and thereafter shall automatically renew for successive periods of three (3) months, unless either party gives to the other not less than thirty (30) days’ written notice of its intention to terminate this agreement at the end of the three (3) month period, or any successive three (3) month period.
(c) Six-Month Subscription: For a period of six (6) months, and thereafter shall automatically renew for successive periods of six (6) months, unless either party gives to the other not less than thirty (30) days’ written notice of its intention to terminate this agreement at the end of the first six (6) month period, or any successive six (6) month period.
(d) Annual Subscription: For a period of one year, and thereafter shall automatically renew for successive periods of one year, unless either party gives to the other not less than thirty (30) days’ written notice of its intention to terminate this agreement at the end of the first one-year period, or any successive one-year period.
3. Supplier’s Responsibilities
3.1 The Services provided pursuant to this agreement are meant for the purposes of providing quick and basic design services. The Customer acknowledges and agrees that the Services are not suitable for the creation of technical or large-scale design projects or design work.
3.2 All Services and all Deliverables are provided on an ‘as-is’ basis. The Supplier shall not be liable if the Services or Deliverables are not fit for any particular purpose for which the Customer wishes to use them.
3.3 It is the Customer’s responsibility to proof and check any Deliverables provided by the Supplier, and the Supplier shall not be responsible for any loss caused as a result of the Deliverables being inaccurate, incorrect, or otherwise containing errors.
3.4 The Supplier shall use reasonable endeavors to supply the Services, and deliver the Deliverables to the Customer, in accordance with this agreement in all material respects.
3.5 The Supplier shall use reasonable endeavors to meet the following performance dates, but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of this agreement:
3.6 Requests for Deliverables will be submitted by the Customer through the Website or email from time to time. The Customer shall submit all such requests via the Customer’s workflow on the Website or to an email address specified in writing by the Supplier from time to time.
3.7 Subject to clause 3.6, the Supplier will endeavor to provide the Customer with one Deliverable by the end of each Business Day; however, such deadline shall be an estimate only and time shall not be of the essence for delivery of any Deliverables.
3.8 If:
(a) The Customer submits a request for a Deliverable on a day which is not a Business Day, or after 3 pm on a Business Day, it will be deemed to have been submitted at 9 am on the next Business Day; and
(b) The Supplier requires further clarification or further information in order to prepare any Deliverables, it shall be entitled to notify the Customer of its further requirements, and the request for Deliverables shall be deemed to be submitted once the Customer provides such information in a form satisfactory to the Supplier.
3.9 The Supplier shall appoint an individual contact point for the Services. The Supplier shall use reasonable endeavors to ensure that the same person acts as the contact point throughout the term of this agreement, but may replace that person from time to time.
4. Customer’s Obligations
4.1 The Customer shall:
(a) Cooperate with the Supplier in all matters relating to the Services; (b) Submit all requests for Deliverables through the workflow page on the Website; and (c) Provide the Supplier with all information it reasonably requests, in a standard satisfactory to the Supplier, in order to provide the Services and prepare the Deliverables.
4.2 If the Supplier’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants, or employees, then, without prejudice to any other right or remedy it may have, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
6. Charges and Payment
6.1 The Customer shall pay the Charges in accordance with this clause 6 and the Order.
6.2 The Charges exclude amounts in respect of VAT, which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to receipt of a valid VAT invoice.
6.3 The Supplier shall submit invoices for the Charges to the Customer in accordance with the payment schedule set out in the Order. If no such schedule is specified, the Supplier may submit invoices for the Charges at the end of each month.
6.4 The Customer shall pay each invoice submitted by the Supplier:
(a) Within 14 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
(b) In full and in cleared funds to a bank account nominated in writing by the Supplier, and
(c) Time for payment shall be of the essence of the contract.
6.5 If the Customer fails to make any payment due to the Supplier under this agreement by the due date for payment, then, without limiting the Supplier’s remedies under clause 11 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.5 will accrue each day at 4% a year above the National Bank of Romania’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
6.6 All amounts due under this agreement 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).
7. Intellectual Property Rights
7.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
7.2 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual, and irrevocable license to copy and modify the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
7.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 7.2.
7.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable license to copy and modify any materials provided by the Customer to the Supplier for the term of the contract for the purpose of providing the Services to the Customer.
8. Confidentiality
8.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients, or suppliers of the other party, except as permitted by clause 8.2.
8.2 Each party may disclose the other party’s confidential information:
(a) To its employees, officers, representatives, contractors, subcontractors, or advisers who need to know such information for the purposes of carrying out the party’s obligations under this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors, or advisers to whom it discloses the other party’s confidential information comply with this clause 8; and
(b) As may be required by law, a court of competent jurisdiction, or any governmental or regulatory authority.
8.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under this agreement.
9. Limitation of Liability
9.1 The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding €1,000,000 per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange, and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
9.2 Nothing in this agreement shall limit or exclude the Supplier’s liability for:
(a) Death or personal injury caused by its negligence, or the negligence of its employees, agents, or subcontractors;
(b) Fraud or fraudulent misrepresentation; or
(c) Any other liability which cannot be limited or excluded by applicable law.
9.3 Subject to clause 9.2, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with this agreement.
9.4 Subject to clause 9.2, the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to the total Charges paid under this agreement.
10. Termination
10.1 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) The other party commits a material breach of any term of this agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
(b) 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 a court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets, or ceasing to carry on business;
(c) The other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
10.2 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 Customer if the Customer fails to pay any amount due under this agreement on the due date for payment.
10.3 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries under the agreement or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under this agreement on the due date for payment, the Customer becomes subject to any of the events listed in clause 10.1(b), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
11. Consequences of Termination
11.1 On termination of this agreement:
(a) The Customer 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 may submit an invoice, which shall be payable immediately on receipt;
(b) The Customer shall return all of the Supplier’s materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this agreement.
11.2 Termination or expiry of this agreement 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 agreement which existed at or before the date of termination or expiry.
11.3 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
12. General
12.1 Force Majeure: Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances, or causes beyond its reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
12.2 Assignment and Other Dealings:
(a) The Supplier 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 this agreement.
(b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, declare a trust over, or deal in any other manner with any of its rights and obligations under this agreement.
12.3 Entire Agreement:
(a) This agreement 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.
(b) 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 this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
12.4 Variation: No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
12.5 Waiver: A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict its further exercise. No single or partial exercise of such exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
12.6 Severance: If any provision or part-provision of this agreement 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 this agreement.
12.7 Notices:
(a) Any notice given to a party under or in connection with this agreement 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 email to the address specified in the Order.
(b) Any notice shall be deemed to have been received:
(i) If delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(ii) If sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service;
(iii) If sent by email, at 9.00 am on the next Business Day after transmission.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action, or other method of dispute resolution.
12.8 Third-Party Rights:
(a) Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
(b) The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.
12.9 Governing Law: This agreement 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 Romania.
12.10 Jurisdiction: Each party irrevocably agrees that the courts of Romania shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
