Terms & Conditions
PinPointUK Limited trading as PinPointMedia (collectively referred to as “we”, “us” or “our” in these terms) is a company registered in England and Wales with company number 08448972.
1. DEFINITIONS AND INTERPRETATION
1.1 The following definitions and rules of interpretation apply in these Conditions:
“Applicable Laws” all applicable laws, statutes, regulations from time to time in force.
“Applicable Data Protection Laws” means:
- To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
- To the extent the EU GDPR applies, the law of the law of the European Union or any member state of the European Union to which we are subject, which relates to the protection of personal data.
“Business Day” a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
“Change Order” has the meaning given in clause 8.1.
“Company Materials” as defined in clause 7.1(k).
“Content” means any image, text, tweet, status update, video, audio file, graphics, soundtracks, printed material, animation, photographs, video stills and any other design or artwork commissioned by you and generated by us in performance of the Services.
“Content Strategy Services” mean Services provided by us which include, without limitation, account direction and management, creative direction, editorial, content and digital marketing, design of both two-dimensional and three-dimensional design, print media, social media, research and insight, workshops, planning and marketing strategies and media buying (via third-parties) as set out in the Scope of Works.
“Contract” means the agreement entered into by you and us for the supply of Services in accordance with these Conditions, Scope of Works (and Project Plan where appropriate) and the Quote.
“Conditions” these terms and conditions as amended from time to time.
“Customer” means the person or firm who purchases Services from us (conveniently referred to as “you” and “your”).
“Deliverables” means the deliverables and any appropriate Content as set out in the Scope of Works.
“Design Brief” means the storyboard, call sheet, design document, script or other written description of the Services/Content including (if relevant) any Samples.
“EU GDPR” means the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.
“Fees” means any and all sums due under the Contract from you to us, as specified in the Quote.
“Intellectual Property Rights” means patents, copyright and related rights, moral rights, trade marks, service marks, trade, business and company names, internet domain names, rights in get up, goodwill and the right to sue for passing off, rights in designs and inventions, database rights, rights to use and protect 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.
“Livestreaming” means transmitting or receiving live or as live Video and audio coverage of an event over the internet as set out in the Scope of Work.
“Media Services” means services where we are engaged to produce Content.
“Order” your order for the Services to be provided by us which shall take the form of either your written acceptance of our quotation, your purchase order form, providing a signed copy of the Quote or the Scope of Works, or payment of the deposit as the case may be.
“Original Material” all Content obtained by us in the course of providing the Services but not used in the Deliverables. Original Material includes any Content commissioned by you and generated by us in performance of the Services.
“Production Day” a day whereby we produce the Content.
“Project Plan” a detailed plan, agreed in accordance with clause 3.2, describing such matters as the Services to be provided by us, Deliverables to be provided, the timetable for their performance and all related matters which will depend upon the Services that are to be provided.
“Samples” means any animation style or any audio, voiceover, stock film footage or video samples, photograph samples and designs.
“Services” means the services, including the Deliverables, to be provided by us to you as set out in the Scope of Works including Video, Content Strategy Services, SEO Services and Social Media Services.
“SEO Services” means services that consist of keyword research, site auditing, consultancy and media management across social media sites and search engines.
“Social Media Services” means the services to be provided by us in respect of social media that are agreed in a Scope of Work.
“Suspension Fees” means any and all pre-production and production time incurred, expenses already incurred, studio time, scheduled filming, third party invoices and any equipment which has already been booked.
“UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
“VAT” value added tax or any equivalent tax chargeable in the UK or elsewhere.
“Video” the provision of video, film, graphical or animation production services by us.
1.2.1 A reference to a statute or statutory provision is a reference to it as amended, extended, or re-enacted from time to time, and shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.2.2 Any words following the terms including, include 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.
1.2.3 A reference to writing or written includes email but not fax.
2. BASIS OF CONTRACT
2.1 Upon receiving an enquiry from you, our sales team shall work with you to agree the initial outline for the project via email (Scope of Works). Our Scope of Work will be based on our discussions with you and your comments on the Samples provided.
2.2 On the basis of the Scope of Works, our sales team will issue a quote for the Fees (Quote).
2.3 The Samples included within the Quote will be our standard Samples only, premium Samples are available at an additional cost.
2.4 The Order constitutes an offer by you to purchase the Services set out in the Scope of Works, for the Fees in accordance with these Conditions.
2.5 Your Order shall only be deemed to be accepted when we issue a written acceptance (which may be by email), at which point and on which date the Contract shall come into existence (Commencement Date).
2.6 Any samples, drawings, descriptive matter or advertising issued by us, and any description or illustrations contained in our catalogues or brochures 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 nor have any contractual force.
2.8 These Conditions apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.9 Any quotation given by us shall not constitute an offer and, unless otherwise specified, is only valid for a period of 30 days from issue.
3. DESIGN PROCESS
4.1 Using the Scope of Works as a guide, our design team shall work with you to plan the Design Brief (except where you are purchasing Content Strategy Services from us when clause 3.2 will apply) and the Deliverables for the Services.
4.2 Where appropriate (for example where you have Ordered Content Strategy Services), after we have accepted your Order in accordance with clause 2.4 we will contact you to discuss the Scope of Works in more detail with a view to agreeing a Project Plan.
4.3 We agree to carry out the Services detailed in the Scope of Works which must be agreed in writing between the parties prior to the Services being performed.
4.4 We shall accommodate any reasonable changes to the Scope of Works that may be requested by you in accordance with clause 8.
4.5 Unless otherwise specified in the Quote or Scope of Works (or otherwise agreed in writing), two rounds of amendments (limited to 8 hours of studio time) to the initial draft of the Services are included within the Fees. Further editing, or any fundamental changes, will be charged at our day rates.
4. CONTENT STRATEGY SERVICES
4.1 This clause 4 contains specific clauses that relate solely to the provision of certain but not all Content Strategy Services by us. In the event of conflict between the provisions contained within this clause 4 and these Conditions, the provisions in this clause 4 shall take precedence.
4.2 Any amendment or additions to the Scope of Works and or Project Plan must be agreed in writing between the parties in accordance with clause 8.
4.3 We will use reasonable endeavours to ensure that when providing the Social Media Services, we understand the terms and conditions of any social media site that is used to deliver Content and that we notify you of any material risk which we become aware of relating to the Content possibly being non-compliant.
4.4 We will use reasonable endeavours to ensure that when providing the Content Strategy Services, we will:
a.) keep administrative passwords safe and secure from unauthorised access, which shall include changing passwords regularly;
b.) ensure that any personnel who leave our employment do not have administrative access rights and keep you informed of any changes to any administrative passwords; and
c.) ensure that any Deliverables will be reasonably transparent to users as being marketed in accordance with good practice.
4.6 Where you require us to provide SEO Services, you shall:
a.) provide relevant keywords;
b.) be responsible for the determination of infringement or non-infringement of any trademarks supplied;
c.) accept and acknowledge that we shall have no control over the exact positioning and traffic from search results and cannot guarantee any placing, rank or position within search engine results; and
d.) be responsible for any coding necessary to your websites which may be necessary to enable us to perform the SEO Services (as agreed by us in advance).
4.7 Where we provide research and insight Content Strategy Services, the following provisions shall apply:
a.) where the personal data required to provide these Content Strategy Services is provided by you, both parties will comply with the Applicable Data Protection Legislation when using and processing the personal data; and
b.) where we are under a duty to protect the anonymity of any respondents to the research we shall only provide you with anonymised data. You shall not attempt to link any data to the identity of any respondent.
4.8 Where we provide media buying services:
a.) we will invoice media costs payable by you for media space booked by us at the agreed rate (and in accordance with any budget agreed with you in advance) together with any fees and industry related charges;
b.) you acknowledge and understand that media costs, ratings and/ or other campaign metrics as set out in any Scope of Works represent estimates based on market predictions and that the final actual pricing and channel share may therefore differ from that set out in the relevant Scope of Works; and
c.) unless otherwise stated in the applicable Scope of Works, where we verify the placement of advertisements it is your responsibility to notify us in writing within 30 days of date of insertion if your advertisement does not appear or is to a different specification than that agreed in accordance with these terms and conditions or the applicable Scope of Works. In the absence of such notification, the advertisements will be deemed to have appeared as specified and are payable in full by you.
4.9 Fees for Content Strategy Services will be payable as detailed in the Quote.
4.10 The Content Strategy Services will be for the term set out in the Scope of Works or Project Plan.
5. MEDIA SERVICES
5.1 Where Video Services are provided by us, we will provide all pre-production, production and post-production Services necessary to deliver the Deliverables set out in the Project Plan.
5.2 The Video Services shall be produced in accordance with your own promotional and marketing materials and from written communications, discussions between you and us.
5.3 All content decisions shall be made by you in accordance with the Project Plan, any supplied by you prior to the commencement of the Video Services and information and instructions provided by you during production. Failure to provide us with clear instruction and information in a timely manner when requested may mean that we will have to make assumptions to enable the Services to be delivered on time. In that event, you will not have the right to reject to the Deliverables solely on the basis of the assumption made by us.
5.4 We will use its reasonable endeavours to include all features and matters contained within the Scope of Work in the Deliverables, save where this is not practicable in our reasonable opinion. You will not be entitled to reject the Deliverables in that event.
5.5 You acknowledge that all final artistic and creative content shall be determined by us in consultation with you.
5.6 Where you request that we provide a script as part of the Deliverables, we shall produce a draft script that will be subject to your advance approval. Additional changes and reviews may incur an additional fee. If you do not approve the script in a timely manner, a non-approved script may be included in the final edit and you will not be entitled to reject the Deliverable.
5.7 Upon completion of the Deliverables, a draft copy will be provided to you for one review and approval. All requests for changes to the Deliverables shall be made in writing and subject to the time frames set out in clause 3.5.
5.8 Further changes will be liable to additional fees. Failure to approve the Deliverables within the timescales set out in the Design Brief or the Project Plan will result its deemed acceptance by you.
5.9 Where the Video Services will be Livestreamed, you acknowledge that there can be no guarantee around the quality or the content of Video Services and that we are in no way responsible for the content uploaded to social media on your behalf.
5.10 We will use reasonable endeavours to ensure that when Livestreaming, we understand the terms and conditions of any social media site that is used to deliver the Video Services and that we notify you of any material risk which we become aware of relating to the Video Services possibly being non-compliant.
5.11 We do not guarantee that the social media site chosen for the Livestreaming will be available or uninterrupted. We are in no way responsible for the availability of the social media site either before, during or after the Livestreaming.
5.12 Video Services shall be invoiced in accordance with the provisions included in the Quote.
6. PROVISION OF THE SERVICES
6.1 With effect from the Commencement Date we shall provide the Services to you using reasonable skill and care and in accordance with the Design Brief or Project Plan (as applicable) in all material respects.
6.2 We shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
6.3 We warrant to you that the Services will be provided using reasonable care and skill.
6.4 We reserve the right to amend the Design Brief or Project Plan 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 we shall notify you in any such event.
7. YOUR OBLIGATIONS
7.1 You shall:
a.) ensure that the terms of the Order and any information you provide in the Design Brief, Project Plan or Scope of Works is complete and accurate;
b.) provide full details of the filming location including any health and safety aspects to be considered (e.g. small spaces, working at height, working with animals);
c.) co-operate with us in all matters relating to the Services including the prompt provision of any instructions, decision, approval or consent required by us in order to continue with the provision of the Services;
d.) ensure that you and your employees, agents, consultants and subcontractors are not abusive or threatening;
e.) provide us, our employees, agents, consultants and subcontractors, with access to your premises and other facilities as reasonably required by us;
f.) provide us with such information and materials as we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
g.) prepare your premises or any alternative filming location for the supply of the Services;
h.) obtain any necessary consent for the inclusion of any actor or other individual who is not supplied by us, and any artwork, photographs, trade marks and locations featured in the filming or any other copyright material supplied by you;
i.) obtain and maintain all necessary consents, licences or other permissions required from any third parties such as landlords, planning authorities, local authorities or similar for the performance of the Services (including the filming location) before the date on which filming is due to start;
j.) comply with all applicable laws, including health and safety laws and guidance, and provide us and our employees, agents or contractors with personal protection equipment (PPE) if necessary for the purposes of filming at the location;
k.) keep all materials, equipment, documents and other property of ours, including filming and camera equipment (Company Materials) at your premises in safe custody at your own risk, maintain the Company Materials in good condition until returned to us, and not dispose of or use the Company Materials other than in accordance with our written instructions or authorisation.
7.2 If our performance of any of our obligations under the Contract is prevented or delayed by any act or omission by you or failure by you to perform any relevant obligation (Default) then:
a.) without limiting or affecting any other right or remedy available to us, we shall have the right to suspend performance of the Services until you remedy the Default, and to rely on the Default to relieve us from the performance of any of our obligations in each case to the extent the Default prevents or delays our performance of any of our obligations;
b.) we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of our obligations as set out in this clause 7.2; and
c.) you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the Default.
7.3 For the purposes of clause 5.2 Default shall include circumstances where we are unable to perform the Services because:
a.) you have breached any of your obligations in clause 7.1; and
b.) you have failed to approve or materially altered the Design Brief and, in our reasonable opinion, there is insufficient time to resolve the issues prior to the first Production Day.
8. CHANGE CONTROL
8.1 Either party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until a Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes (for example a new or amended Quote) and the effect that those changes will have on:
a.) the Services;
b.) our existing charges (including, but not limited to, any Fees to re-record any voiceover or film footage already recorded or re-animate a storyboard due to changes in the script or if you change your mind about the Samples utilised);
c.) the timetable of the Services; and
d.) any of the terms of the Contract.
8.2 If we wish to make a change to the Services we shall provide a draft Change Order to you.
8.3 If you wish to make a change to the Services:
a.) you shall notify us and provide as much detail as we reasonably require of the proposed changes, including the timing of the proposed changes; and
b.) we shall, as soon as reasonably practicable after receiving the information at clause 8.3(a), provide a draft Change Order to you.
8.4 If the parties:
a.) agree to a Change Order, they shall sign it and that Change Order shall amend the Contract; or
b.) are unable to agree a Change Order, either party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in clause 17.
8.5 We may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by you pursuant to clause 8.3 on a time and materials basis in accordance with our daily fee rates, as set out in our current price list.
9. FEES AND EXPENSES
9.1 Fees shall be calculated in accordance with our daily fee rates, as set out in our current price list referred to in the Quote at the date of the Contract. Our daily fee rates are calculated on the basis of an eight-hour day from 9:00AM to 5:00PM worked on Business Days.
9.2 Overtime may be charged for any time worked on a weekend or otherwise outside the hours of 9:00AM to 5:00PM on Business Days. Overtime shall be charged at our hourly rate as detailed in our rate card (which will be provided on request)
9.3 We shall charge for any expenses reasonably incurred by the individuals engaged by us in connection with the Services including travel costs, hotels, parking, subsistence and any associated expenses, and for the cost of services provided by third parties and required by us for the performance of the Services, and for the cost of any materials noting that we shall:
a.) use reasonable endeavours to ensure any accommodation booked is as cost-effective as possible within the area;
b.) obtain your approval in advance for any individual expense in excess of £200.00 which is not included within the Fee;
c.) recover mileage at the rate of 55p per mile. Long distance travel (air, sea etc.) shall be invoiced and payable in advance.
9.4 We shall also charge for any expenses reasonably incurred by us in connection with the Services such as production insurance (at a rate of 4% of the total cost of the production) and tree planting (to offset carbon).
9.5 We shall, on request, provide you with the Original Material subject to the licence granted at clause 11.2 and receipt in cleared funds of an agreed fee (as stated in our quote but in default, in the sum of £425+VAT).
9.6 Should you fail to confirm to us your requirement for the Original Material (and submit payment of the agreed fee in cleared funds) within 30 days of delivery of the Deliverables, we shall be at liberty to erase and permanently destroy all Original Material with no obligation or liability to you.
9.7 We can retain the Original Material in our archive, subject to payment of a separate fee for the archiving service.
9.8 We reserve the right to retain and use any Original Materials which you have not requested.
10. INVOICING AND PAYMENT
10.1 We shall invoice you as follows:
a.) A non-refundable deposit of 50% of the Fee will be taken on the Commencement Date;
b.) An interim invoice of 30% of the Fee will be issued on the first Production Day; and
c.) A final invoice of the balance of the outstanding Fees plus expenses will be issued on the earlier of: (i) acceptance of the Deliverables; or (ii) 10 days from delivery of the Deliverables.
10.2 As an alternative to a deposit we may, at our option, accept a purchase order number for a sum equivalent to the Fee.
10.3 You shall pay each invoice in full and without deduction: (a) within 7 days of the date of the invoice; (b) in pounds sterling in cleared funds to such bank account as nominated by us in writing. Time for payment shall be of the essence of the Contract. We shall not release any Deliverables to you until our Fees have been paid in full.
10.4 All amounts payable are exclusive of VAT at the prevailing rate.
10.5 If you fail to make a payment due to us under the Contract by the due date then, without limiting our remedies under clauses 14 and 15, you shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment at a rate of 4% per 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%).
10.6 All sums payable to us under the Contract are exclusive of VAT, and you shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice.
10.7 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).
11. INTELLECTUAL PROPERTY
11.1 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 you) shall be owned by us.
11.2 Subject to payment of the Fees, we grant you, or shall procure the direct grant to you of, a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual and irrevocable licence to copy and modify the Deliverables (excluding materials provided by you) for the purpose of using the Services and Deliverables in your business.
11.3 You grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you for the purpose of providing the Services.
11.4 You shall indemnify us in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by us arising out of or in connection with any claim brought against us, our agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of the Contract of material supplied by you.
11.5 You shall, on reasonable request, permit us to include a discrete production credit within the Deliverables.
12. LIABILITY, INDEMNITY AND INSURANCE
12.1 In the event that we fail to perform the Services with reasonable care and skill we shall carry out any remedial action reasonably necessary at no additional cost to you. We have given commitments as to compliance of the Services with relevant specifications in clauses 6.1 to 6.3. 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.
12.2 Subject to clause 12.8, we shall under no circumstances whatsoever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise, for:
a.) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; or
b.) any: (i) loss of profit; (ii) loss of sales or business; (iii) loss of agreements or contracts; (iv) loss of anticipated savings; (v) loss of use or corruption or software, data or information; (vi) loss of or damage to goodwill or (vii) indirect or consequential loss.
12.3 References to liability in this clause 12 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
12.4 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
12.5 Nothing in this clause 12 shall limit your payment obligations under the Contract.
12.6 Our total liability to you in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 125% of the price of the Services.
12.7 We shall not be liable for any loss or damage suffered by you resulting from your failure to follow any instructions given by us or any failure by you to comply with your obligations in clause 4.
12.8 Nothing in this Contract shall limit or exclude any liability which cannot legally be limited, including but not limited to, death or personal injury caused by negligence; fraud or fraudulent misrepresentation; and breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982.
12.9 You shall indemnify us against any costs, liability, damages, loss, claims or proceedings arising from loss or damage to any equipment (including Company Materials and that belonging to any third parties appointed by us) caused by you or your agents or employees.
12.10 Whilst every care is taken in the handling of your property, we accept no liability whatsoever for any loss or damage, howsoever caused, or any other loss by unforeseen circumstances whilst they are in our possession, custody or control. Subject to clause 12.8, all and any liability for such loss or damage will be limited to the replacement cost of the materials or media and in no circumstances will any liability attach to any claim for the value of the content.
12.11 This clause 12 shall survive termination of the Contract.
13.1 Each Party undertakes that, except as provided by clause 10.2 or as authorised in writing by the other party, it shall not at any time during the Contract, and for 12 months after its termination:
a.) disclose any confidential information concerning the business, affairs, customers, clients or suppliers of the other party; or
b.) use any confidential information for any purpose other than to perform its obligations under the Contract.
13.2 Either party may disclose any confidential information to:
a.) its employees, officers, representatives, sub-contractors, suppliers, or advisors who need to know such information for the purposes of carrying out that party’s obligations under the Contract. 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 13; and
b.) As may be required by law, a court or competent jurisdiction or any governmental or other regulatory authority.
14. SUSPENSION OF SERVICES
14.1 You: You may postpone the Media Services on giving us notice in writing. Any recommencement of the Media Services must take place within 6 months of the postponement. You may only postpone the Media Services a maximum of 3 times.
14.2 In the event that you give notice to postpone the Media Services, you shall be liable to us as follows:
a.) 30+ days before the Start Date: any expenses already incurred.
b.) 21-30 days before the Start Date: 60% of the Suspension Fees;
c.) 11-20 days before the Start Date: 80% of the Suspension Fees;
d.) 0-10 days before the Start Date: 100% of the Suspension Fees.
For the purposes of this clause, the start date shall mean the date on which we have scheduled our first Production Day.
14.3 Us: We reserve the right to suspend or postpone any Production Day for any reason (including, without limitation, Default, or if you are in default of payment of any fees due) on 48 hours notice to you. You agree that:
a.) We shall not be in breach of this agreement by virtue of that cancellation or postponement;
b.) We and you shall use reasonable endeavours to agree a rescheduled date for filming.
15.1 Without affecting any other right or remedy available to it, either party may terminate the Contract on giving 30 days’ written notice.
15.2 Either party may immediately terminate the Contract by giving written notice to the other if:
a.) any sum owed to the receiving party is not paid within 7 days of the due date for payment;
b.) the other party commits any other material breach of any term of the Contract and (if the breach is remedial) fails to remedy it within 14 days after being given written notice to do so;
c.) the other party takes any step or action (other than in relation to a solvent restructuring) in connection with entering administration, provisional liquidation or any composition or arrangement with its creditors, being wound up (whether voluntarily or by order of the court), having a receiver appointed to any of its assets or ceasing to carry on business;
d.) the other party cease to carry on all or a substantial part of its business; or
e.) 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.
15.3 Without affecting any other right or remedy available to it, we may terminate the Contract with immediate effect by giving written notice to you if you are subject to a change of control.
15.4 Without affecting any other right or remedy available to it, we may suspend the supply of Services under the Contract or any other contract between you and us if:
a.) you fail to pay any amount due under the Contract on the due date for payment;
b.) you become subject to any of the events listed in clause 15.2(c) or 15.2(d), or we reasonably believe that you are about to become subject to any of them; and
c.) we reasonably believe that you are about to become subject to any of the events listed in clause 15.2(b)
16. EFFECTS OF TERMINATION
16.1 Upon the termination of the Contract for any reason:
a.) we shall retain any deposit paid and, where no deposit has been paid, we shall issue an invoice for the deposit against the purchase order given which shall be payable by you immediately upon receipt;
b.) you shall immediately pay to us all of our outstanding unpaid invoices and interest, and, in respect of Services for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;
c.) you shall return all of the Company Materials and any Deliverables which have not been fully paid for. If you fail to do so, then we may enter your premises and take possession of them. Until such return, you shall be solely responsible for their safe keeping and will not use them for any purpose;
d.) each party shall immediately cease to use, either directly or indirectly, any confidential information, and shall immediately return to the other party any documents in its possession or control which contain or record any confidential information; and
e.) save as provided in clause 11.2 and clause 9.4, your permission to use our Intellectual Property Rights shall immediately cease and you shall immediately return to us any material in your possession or control.
16.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
16.3 Any provision which, either expressly or by implication, is intended to come into or continue in force on or after termination shall remain in full force and effect.
17. DISPUTE RESOLUTION
17.1 If a dispute arises out of or in connection with the Contract or the performance, validity or enforceability of it (Dispute) then the parties shall follow the procedure set out in this clause 17:
a.) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the parties nominated representatives shall attempt in good faith to resolve the Dispute;
b.) if the parties are for any reason unable to resolve the Dispute within 20 days of service of the Dispute Notice, the parties agree to enter into mediation in good faith to settle the Dispute in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 30 days service of the Dispute Notice, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, referring the dispute to mediation. A copy of the ADR notice should be sent to CEDR. Unless otherwise agreed between the parties, the mediation will start not later than 30 days after the date of the ADR notice.
c.) The commencement of mediation shall not prevent the parties commencing or continuing court proceedings in relation to the Dispute under clause 22.11 which shall apply at all times.
18. COMPLIANCE WITH LAWS
Both parties will comply with the Applicable Laws.
19. DATA PROTECTION
19.1 Both parties will comply with all applicable requirements of the Applicable Data Protection Laws.
20. FORCE MAJEURE
20.1 Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (Force Majeure Event).
20.2 If the Force Majeure Event continues for a period of 3 months or more, either party may at its discretion terminate the Contract immediately by written notice. In the event of such termination, the parties shall agree upon a fair and reasonable payment for all Services provided up to the date of termination. Such payment shall take into account any prior contractual commitments entered into in reliance on the performance of the Contract.
21.1 The parties acknowledge that, at the date of the Contract the Covid-19 pandemic is still in existence and having effects on businesses and supply chains worldwide. The parties shall use commercially reasonable efforts to minimise the effect of the Covid-19 pandemic on the performance of their obligations under this agreement.
21.2 Should a party have reason to believe it will be unable to comply with any of its obligations in this agreement due to the impact of the Covid-19 pandemic (including, but not limited to an employee or contractor of ours having to self-isolate and being unable to perform the Services) it shall notify the other party without delay and the time for performance of the relevant obligation shall be extended by a period equivalent to the period during which performance of the obligation has been delayed. If the period of delay or non-performance continues for 16 weeks, the party not affected may terminate this agreement by giving 14 days’ written notice to the affected party.
22.1 Non-Solicitation. Neither party shall, for the term of the Contract and for a period of 12 months after its termination:
a.) employ or contract the services of any person who is or was employed or otherwise engaged by the other party at any time in relation to the Contract;
b.) solicit or entice away from the other party any customer or client where any such solicitation or enticement would cause damage to the business of that party.
22.2 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 based on any statement in the Contract. Nothing in this clause shall limit or exclude any liability for fraud.
22.3 Notices. Any notice to be given under the Contract shall be given in writing by pre-paid first-class post (or other next working day delivery service) sent to the registered address of the party to be notified or sent by email to the address notified to the other party from time to time. Such notice shall be deemed to have been received by the party (i)if sent by pre-paid first class post on the second business day following posting and (ii) if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 22.3, business hours means 9.00am to 5.00pm on a Business Day. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
22.4 Severance. If any provision or part provision of this Contract shall prove to be invalid or unenforceable, that Condition shall be deemed modified to the minimum extent necessary to make it valid and enforceable. If such modification is not possible, the relevant provision shall be deemed deleted. If any provision or part-provision of this Contract deleted under this clause 22.4 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision. Any modification or deleted shall not affect the remainder of the Contract.
22.5 Waiver. No failure or delay by us in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
22.6 Variation. Subject to clause 8, no variation of the Contract shall be effective unless it is in writing and signed by the parties.
22.7 Assignment. You may not assign or deal in any other manner with any or all of your rights or obligations under the Contract without our prior written consent. We 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.
22.8 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
22.9 Third party rights. No one other than a party to the Contract shall have any right to enforce any of its terms.
22.10 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.
22.11 Jurisdiction. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any such dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.