Master Services Agreement

 

 

 

 

 

 

 

THIS MASTER SERVICES AGREEMENT (Agreement) is made effective as of the date of last signature or electronic acceptance of this Agreement “Effective Date” and is made BETWEEN.

Parties

  • MIND GYM PLC., incorporated and registered in England and Wales, whose registered office is at 160 Kensington High Street, London, W8 7RG. (Supplier) and
  • The client that has signed or electronically accepted this Agreement (Client). 

RECITALS

WHEREAS, the Supplier is in the business of providing creative personal development and talent management services.

WHEREAS, the Client desires that the Supplier provide Services (as defined below) to the Client.

NOW, THEREFORE, in consideration of the foregoing, this Agreement sets forth the terms and conditions under which Supplier will provide its professional services under one or more Statement of Works (as defined below).

1. INTERPRETATION

1.1 Capitalized terms, which are not otherwise defined in the body of this Agreement, have the following meanings:

Affiliate”: means any present or future entity controlled by, or under common control with, a Party.

Agreement”: this  Agreement together with any and all Quotes attached hereto, which shall be deemed to be incorporated by reference herein.

Data Protection Legislation”: all laws, regulations, legislative and regulatory requirements and codes of practice applicable to the processing of Personal Data including, without limitation, the UK Data Protection Act 2018 and any regulations, instruments or codes of practice issued pursuant to that Act, the GDPR, and any successor legislation replacing, repealing or amending those laws.

Deliverables”: all Documents, Digital Products, Sessions or other products and materials delivered by the Supplier in relation to the Services in any form, including notes, Session materials, general data, reports (including drafts), or any other materials set out in a Quote.

Development”: means all new works created specifically for the Client as part of the Services as detailed under a Quote, with or without the Client’s Input Materials.

Digital Products”: Supplier products made available to the Client via a digital platform, whereby the Client has the option to either host such products on its own platform or for the Supplier to host such products on the Client’s behalf using an approved third party provider.

Document”: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.

Fees/Charges”: payment made by the Client in return for receiving the Services.

GDPR”: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.

Input Material”: all Documents, information and materials provided by the Client relating to the Services.

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

Participant Personal Data”: Personal Data relating to or obtained from Participants that is processed by either Party in connection with this Agreement, as further described in the Processing Schedule.

Participants”: means the Client’s employees and individual contractors that have been nominated by the Client to participate in Sessions or use Digital Products.

Personal Data”: has the meaning given to it in the Data Protection Legislation applicable in the UK from time to time.

Prepayment”:  as set out further in paragraph 6.13, where the Client has agreed in writing (either in a Quote/or SOW or as otherwise agreed) to pay in advance a non-refundable payment of 12 months’ worth of Fees for future Services.

Processing Purposes”: each Party’s purposes for processing Participant Personal Data, as set out in the Processing Schedule.

Processing Schedule” details the categories of Personal Data that the Supplier will be collecting and processing under this Agreement.

Quote /or Statement of Work (‘SOW’)”(and reference hereafter to a Quote shall be deemed to include a reference to any relevant SOW): the detailed plan describing the Services to be provided by the Supplier under this Agreement and setting out the estimated timetable, specific responsibilities of the Supplier and the fees and any expenses to be paid.

 “Service(s)”: the training service or services to be provided by the Supplier under this Agreement as set out in one or more Quote(s).

Session”: Service(s) provided by the Supplier by a live virtual feed or in a physical location attended by the Client’s permitted invitees.

Term”: means the period of time during which this Agreement is in effect, as set forth in paragraph 10.

1.2 If there is any conflict between the terms set forth in a Quote and the provisions of this Agreement, the terms set forth in the Quote shall govern.

2.COMMENCEMENT AND DURATION

  • The term of this Agreement will commence on the Effective Date and will remain in effect until termination in accordance with paragraph 11.

3. QUOTE

  • The Client or its Affiliate may request a Quote from the Supplier and any agreed Services shall be provided either by the Supplier of one of its Affiliates.
  • Unless agreed before the commencement of the Services, each Quote shall be agreed by the parties in the following manner:

(a) the Client shall provide the Supplier with a request for a proposed Quote, setting out the requirements and specifications of the Services which it is requesting from the Supplier, which could include a description of the Service(s) to be provided (or detailed specification for a new Service), dates by which the Services or any staged delivery is requested to be started and finished, and such other information as the Supplier may request to allow the Supplier to prepare a proposed Quote;

(b) the Supplier shall, as soon as reasonably practicable, provide the Client with a proposed Quote in response to the Client’s request, setting forth the Supplier’s response to the Client’s requested requirements (including all relevant Deliverables and Developments to be provided as part of the Services required thereby) and also including the fees for the proposed Services and any expenses to be charged by Supplier, as well as the schedule for paying such fees and any expenses; and

(c) the Supplier and the Client shall discuss the proposed Quote and, if the Parties reach agreement on the Quote, it shall be signed by both Parties and it shall become part of and subject to this Agreement.

For avoidance of doubt, proposed Quotes are supplied by the Supplier on the basis that no agreement as to the Services shall come into existence, nor any Services shall be supplied until a Quote has been agreed in writing by both Parties.

3.3 If either Party requests a change to the scope of the Services described in a Quote (whether previously agreed or not), or to the execution of the Services, or any Session included as part of the Services, such request must be in writing. Upon receipt of such a request from the Client, the Supplier shall, within a reasonable time, provide a written estimate to the Client of:

(a) the likely time required to implement the change;

(b) any variations to the Supplier’s fees and any expenses arising from the requested change, for example the cancellation fees incurred for any changes to any Sessions; and

(c) the likely effect of the change on other aspects of the Quote or on the terms of this Agreement, if any.

3.4 If, after receiving the information described in paragraph 3.3(a)-(c), the Client wishes the Supplier to proceed with the change, the Supplier has no obligation to so proceed unless and until the Parties have agreed in writing on the necessary variations to its fees and expenses, (if any), and any other relevant terms of the Quote (and the Agreement, if any) to take account of the change.

3.5 The Supplier may, from time to time, change the Services, provided that such changes do not materially affect the nature or quality of the Services.

4.SUPPLIER’S OBLIGATIONS

4.1 The Supplier shall use reasonable efforts to manage and provide the Services in all material respects in accordance with any Quote.

4.2 The Supplier shall use reasonable efforts to meet any performance dates specified in the Quote.

4.3 The Supplier shall appoint a manager (“Supplier’s Manager”) who shall have authority contractually to bind the Supplier on all matters relating to the Services. The Supplier shall use reasonable efforts to ensure that the same person acts as the Supplier’s Manager throughout the term of this Agreement (including all Quote(s)), but the Client acknowledges that it may not be possible for the Supplier to do so.

4.4 The Supplier shall use reasonable efforts to observe all material health and safety rules and regulations and any other reasonable security requirements that apply at any of the premises at which the Sessions(s) are held of which the Supplier has been informed (in accordance with paragraphs 5.1(d) and 5.1(e)). The Supplier shall not be liable under this Agreement if, as a result of complying with such rules, regulations and requirements, it is in breach of any of its obligations under this Agreement, including any Quote.

4.5 The Supplier shall obtain, be responsible for and maintain all necessary licences (including third party licences relating to Digital Products) and consents and comply with all relevant applicable laws, rules and regulations in relation to the Services.

5. CLIENT’S OBLIGATIONS

5.1 The Client shall:

(a) co-operate with the Supplier in all matters relating to the Service and appoint a manager (“Client Manager”) in relation to the Services, who shall have the authority contractually to bind the Client on matters relating to the Services;

(b) provide, for the Supplier, its agents, sub-contractors and employees, in a timely manner and at no charge, access to premises, data and other facilities required for the proper provision of the services including as specified in the Quote;

(c) provide, in a timely manner, such Input Material and other information as the Supplier may request and ensure that it is accurate in all material respects;

(d) be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the Services, including identifying, monitoring, removing and disposing of any hazardous materials from any of such premises before and during the supply of the Services at those premises;

(e) inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the relevant premises and with which the Supplier is required to comply;

(f) ensure that all of the Client’s equipment, (including systems, cabling or other facilities provided by the Client) is in good working order and suitable for the purposes for which it is to be used in relation to the Services and conforms to all relevant standards or requirements;

(g) obtain and maintain all necessary licences and consents and comply with all relevant applicable laws, rules and regulations in relation to the Services, the installation of the equipment, (including tools, systems, cabling or facilities), provided by the Supplier or its subcontractors, the provision and use of Input Material, and the provision and use of the Client’s equipment in conjunction with the Supplier’s equipment, in all cases before the date on which the Services are to start; and

(h) ensure that the attendees of each Session shall be only those of the Client’s employees or independent contractors (under the Client’s control) whose job or engagement requirements or other work-related factors make it appropriate for them to attend.

5.2 If the Supplier’s performance of its obligations under this Agreement (including any Quote) is prevented or delayed by any act or omission of the Client, its agents, sub-contractors or employees, the Supplier shall not be liable for any consequences arising from such prevention or delay.

5.3. The Client shall not, without the prior written consent of the Supplier, at any time during the term of this Agreement or for six (6) months thereafter solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of the Supplier engaged in the provision of the Services and with whom Client had contact with as a result of this Agreement; provided, however, that the foregoing shall not prevent Client from (i) conducting general solicitations for any officers or employees (which solicitations are not specifically targeted at the aforementioned persons) through the use of media advertisements, professional search firms or otherwise or (ii) hiring any person responding to such general solicitations or who otherwise contacts Client on his or her own initiative without any solicitation by Client.

6. CHARGES AND PAYMENT

6.1  The Client shall provide its purchase order prior to the commencement of the Services.   The Supplier shall be under no obligation to commence provision of the Services until receipt of the Client’s purchase order.

6.2 The Supplier shall invoice the Client for the fees set forth in each Quote, (together with any expenses and costs of materials agreed upon in any Quote to be reimbursed by the Client) after completion of the relevant Services.  The Client shall pay each invoice submitted to it by the Supplier, in full, within 30 days of receipt. Payment for invoices submitted by the Supplier shall be made via electronic fund transfer. The Supplier will execute all documents reasonably necessary for the Client to make electronic fund transfers into the Supplier’s bank account. In the event that additional charges and expenses become payable during the provision of the Services in relation to, for example, travel and subsistence and printing charges for non-standard items, such additional charges and expenses shall be invoiced separately.

6.3 All amounts of money referred to in this Agreement shall be interpreted as being amounts exclusive of value added tax, any similar sales tax or any tax that replaces such sales taxes. Any such tax payable in relation to any such amounts shall be paid in addition to those amounts.

6.4 If the Client is required under any applicable law to withhold or deduct any amount from the payments due to the Supplier, the Client shall increase the sum it pays to the Supplier by the amount necessary to leave the Supplier with an amount equal to the sum it would have received if no such withholdings or deductions had been made.

6.5 If a Session is cancelled by the Client giving more than 28 days advance written notice to the Supplier, then the Client may re-arrange the date of such Session or terminate the Supplier’s obligation to provide the cancelled Session without incurring any liability to the Supplier for the fees associated with such Session; provided, however, that the Client shall not be relieved of its obligation to pay the Supplier amounts owed in respect of expenses already incurred by the Supplier or Services previously supplied in respect of the cancelled Session. Any cancellation pursuant to this paragraph 6.5 shall not otherwise affect any agreement on future Services to be performed.

6.6 If a Session is cancelled by the Client giving at least 14 but not more than 28 days advance written notice to the Supplier, then the Client may re-arrange the date of such Session or terminate the Supplier’s obligation to provide the cancelled Session but the Supplier shall be entitled to charge the Client fifty percent (50%) of the price agreed for the cancelled Session and any expenses already incurred by the Supplier in respect thereof, which sums shall be immediately due and payable. The Client shall not be relieved of its obligation to pay the Supplier amounts owed for Services previously supplied in respect of the cancelled Session. Any cancellation pursuant to this paragraph 6.6 shall not otherwise affect any agreement on future Services to be performed.

6.7 If a Session is cancelled by the Client giving less than 14 days advance written notice (or no notice, in writing or otherwise) to the Supplier, then the Supplier may at its absolute discretion determine whether it will re-arrange the date of the cancelled Session and without prejudice thereto, all payments due and expenses incurred by the Supplier in respect of such Session shall be due and payable by the Client as if the Session had taken place. Such cancellation shall not otherwise affect any agreement on future Services to be performed.

6.8  Development and Design: In the event that the Supplier’s services comprise development and design services, the Client shall be entitled to cancel such services by way of written notice to the Supplier; provided, however that the Client shall be liable for the applicable cancellation fee in accordance with the following rates (such rates to be based on thresholds in relation to such services as shall be determined by agreement between the Client and the Supplier below):

Percentage of work completed by Supplier Cancellation fee – percentage of Charges payable to Supplier
0% 0%
33% 33%
66% 66%
100% 100%

6.9  Digital Products are non-cancellable during the agreed term of a licence and non-cancellable upon a one-off purchase unless the Supplier has materially breached this Agreement.

6.10 Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Supplier in respect of any valid invoice issued by the Supplier in accordance with this Agreement on the due date, the Supplier may:

(a) charge interest on such sum from the due date for payment at the annual rate of 2% above the base lending rate from time to time of Barclays Bank plc accruing on a daily basis and compounding fortnightly until payment is made, whether before or after any judgment; and

(b) suspend all Services or Sessions otherwise agreed upon by the Parties but yet to be supplied until payment has been made in full.

6.11 Time for payment shall be of the essence in this Agreement.

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

6.13  Where a Prepayment has been agreed by the Parties, the Client shall pay the Supplier the Fees for future, to be agreed Services, at the commencement date.  The Client is entitled for that 12 month period to purchase the Prepayment value of Services from the Supplier. The Supplier shall use its reasonable endeavours to alert the Client on a regular basis as to the time period left in which the Client must use the Prepayment. However, in the event the Client does not purchase such Services by the end of the 12 month period, the Prepayment shall not be refundable and shall be treated by the Supplier as an asset which belongs to the Supplier.

7. INTELLECTUAL PROPERTY RIGHTS

7.1 As between the Client and the Supplier, all Intellectual Property Rights and all other rights in the Deliverables and any other documents and materials provided by the Supplier, (collectively “Training Materials”) shall be owned by the Supplier absolutely.

7.2 The Supplier hereby grants the Client for the term of this Agreement a non-exclusive, revocable, royalty free licence for the Client employees who attend the training sessions, (‘Program Participants’), to use the Training Materials for the purpose of receiving the Services in accordance with the terms of the Agreement.

7.3 Supplier specifically consents to the Program Participants making their own notes on the insights/information shared throughout the training, (“Notes”), and following delivery of the training to use the Training Materials and their Notes for their own developmental purposes, to facilitate discussions about the training and to share ideas with other employees for their internal development as long as Client does not, (without express prior written consent from the Supplier), use the Training Materials for additional sessions without the Supplier’s involvement or to provide training to additional employees, or disseminate the Training Materials outside the Client and/or its Affiliates.

7.4 Except as outlined above, the Client may not duplicate, reproduce, copy, translate, publish, supply, stream, record, extract, adapt or create versions, derivative or compilation works from any of the Training Materials unless the Client has the express prior written consent from the Supplier.

7.6 Subject to the Client making no admission in respect thereof or otherwise prejudicing the Supplier in respect thereof, the Supplier, at its own expense, shall defend, indemnify and hold the Client harmless from and against any claims, actions, liabilities or losses that are suffered by or brought against the Client directly by a third party resulting from, pertaining to or in connection with any infringement by the Client by its use of the Deliverables of that third party’s Intellectual Property Rights.  The Supplier shall have sole conduct of any such claims and the Client shall, at the Supplier’s cost, provide all such assistance in respect thereof as the Supplier may reasonably require.

7.7 Subject to the Supplier making no admission in respect thereof or otherwise prejudicing the Client in respect thereof, the Client, at its own expense, shall defend, indemnify and hold the Supplier harmless from and against any claims, actions, liabilities or losses that are suffered by or brought against the Supplier directly by a third party resulting from, pertaining to or in connection with any infringement by the Supplier by its use of the InPut Materials of that third party’s Intellectual Property Rights. The Client shall have sole conduct of any such claims and the Supplier shall, at the Client’s cost, provide all such assistance in respect thereof as the Client may reasonably require.

8.CONFIDENTIALITY

8.1 Both Parties acknowledge and agree that documentation and information provided under or in connection with this Agreement is confidential to the disclosing party (“Disclosing Party”). The receiving party (“Receiving Party”) shall keep in strict confidence all Documents, technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been supplied or disclosed to the Receiving Party, its employees, agents or sub-contractors and any other confidential information concerning the Disclosing Party’s business or its products or Deliverables which the Receiving Party may obtain (“Confidential Information”) and shall use it only for the purposes of this Agreement.

8.2 Clause 8.1 above will not apply to any Confidential Information which:

8.2.1     is in the public domain at the time of disclosure or comes into the public domain other than as a result of disclosure by the Receiving Party contrary to the terms of this Agreement; or

8.2.2     the Recipient Party lawfully had in its possession, (as can be demonstrated by its written records), without restriction on disclosure prior to receipt from the Disclosing Party; or

8.2.3     the Recipient Party lawfully receives, (as can be demonstrated by its written records), from a bona fide third party without restriction on disclosure; or

8.2.4     is developed independently of and without reference to Confidential Information received by the Recipient Party from the Disclosing Party as can be demonstrated by its written records; or

8.2.5     is ordered disclosed by a court of competent jurisdiction or other quasi-judicial or regulatory body or by a government agency, provided that such disclosure only applies to that portion of the Confidential Information that is required to be disclosed and the Recipient Party first promptly notifies the Disclosing Party of such directive so that the Disclosing Party may contest it.

8.3 The Receiving Party shall restrict disclosure of the Disclosing Party’s Confidential Information to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging its obligations or enjoying its rights under this Agreement and shall ensure that such employees, agents or sub-contractors are subject to same obligations of use and confidentiality (and shall be responsible for breach of such provisions by any such persons).

8.3 The Receiving Party will return and procure the return of all Confidential Information in document form, including any copies made, to the Disclosing Party upon termination or expiration of the applicable Quote or at the Disclosing Party’s request.

8.4 This paragraph 8 shall survive expiration or termination of this Agreement.

8.5 Either Party may disclose to third parties the fact that the Supplier has provided the Services to the Client but neither may reveal the details of this Agreement or the relationship between the Parties, including any commercial arrangements in relation hereto, without the other Party’s express prior written agreement.

9. DATA PROTECTION

9.1        The Parties acknowledge and agree that:

(a)        both Parties will act as controllers when processing Participant Personal Data in connection with this Agreement; and

(b)        Participant Personal Data is likely to comprise the types of Personal Data set out in the Processing Schedule depending upon the nature of the Services and Deliverables provided. See the full Mind Gym Privacy Policy for further information about our processing of Personal Data and rights in respect of Personal Data.

9.2        Each Party shall comply with its obligations under the Data Protection Legislation in respect of its processing of Participant Personal Data in connection with this Agreement.  Without limiting the generality of the foregoing, each Party shall:

(a)        ensure that any disclosure of Participant Personal Data to the other Party is in accordance with the Data Protection Legislation;

(b)        ensure that the privacy notice requirements of the Data Protection Legislation with respect to its own processing of Participant Personal Data (including disclosure of Participant Personal Data to the other Party and receipt of Participant Personal Data from the other Party) are met;

(c)        only process Participant Personal Data for the Processing Purposes applicable to that Party or as may otherwise be required by applicable laws and/or permitted under the Data Protection Legislation.

9.3        The Client acknowledges that much of the Participant Personal Data obtained by the Supplier directly from Participants, in particular diagnostic and psychometric data and information disclosed by Participants in Sessions, will be processed by the Supplier in accordance with professional obligations of confidentiality to which the Supplier and the Supplier personnel who deliver the Services and Deliverables are subject, and that accordingly no such Participant Personal Data will be disclosed to the Client except as may be required by applicable laws and in accordance with the Data Protection Legislation.

9.4        The Supplier may make audio and/or video recordings in Sessions for the purpose of assessing the performance of coaches engaged by the Supplier to deliver Sessions, as part of the Supplier’s internal quality assurance processes.  The Supplier shall only share the recordings with the coach that is the subject of the recording and with such of its staff who need access to the recording to carry out their duties in respect of the Supplier’s quality assurance processes.  The Supplier shall ensure that all Participants are informed at the start of the Session that the Session will be recorded.  The Client will not be entitled to make audio and/or video recordings in Sessions without the express prior permission of the Supplier and the relevant consents from the coaches and Participants.

9.5        Each Party shall co-operate with the other, to the extent reasonably requested, in relation to:

(a)        any request by a Participant to exercise any of his/her rights as a Data Subject under the Data Protection Legislation;

(b)        any other communication from a Participant or other data subject concerning the processing of their Personal Data comprised in Participant Personal Data; and

(c)        any communication from a supervisory authority concerning the processing of Participant Personal Data.

9.6        If the processing of Participant Personal Data pursuant to a Quote involves a restricted transfer of Participant Personal Data, the Parties to that Quote shall take such steps as are necessary to ensure that there is a valid transfer mechanism in place in respect of that transfer in accordance with the Data Protection Legislation applicable to that transfer.  If the Parties enter into controller-to-controller standard contractual clauses pursuant to this clause, the appendices in any such standard contractual clauses shall be completed in accordance with the processing details set out in the Processing Schedule.  In the event of a conflict between any provision of any standard contractual clauses executed pursuant to this clause and any provision of this Agreement, the provision of the standard contractual clauses shall prevail.

 

10. LIMITATION OF LIABILITY – THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF THIS PARAGRAPH

10.1 This paragraph 10 sets out the entire financial liability of the Parties (including any liability for the acts or omissions of their respective employees, agents and sub-contractors) to the other in respect of:

(a) any breach of this Agreement;

(b) any use of the Services, the Deliverables or any part of them (as permitted under this Agreement); and

(c) any representation, statement or tortious act or omission (including negligence) by either Party arising under or in connection with this Agreement or the Services.

10.2 Except for the warranties explicitly contained in this Agreement, the Supplier makes no representation or warranty of any kind, whether statutory, express or implied (either in fact or by operation of law) with respect to the Deliverables, the Session(s) or Services provided under this Agreement.

10.3 Nothing in this Agreement shall limit or exclude the liability of either Party for:

(a) death or personal injury resulting from its negligence;

(b) fraud or fraudulent misrepresentation; or

  1. c) for an indemnity provided for in paragraph 7; or

(d) a breach of paragraph 8.

10.4 Subject to paragraph 10.2 and 10.3 above:

(a) neither Party shall be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for:

(i) loss of profits, loss of business, loss of goodwill and/or similar losses, loss of anticipated savings; loss of goods, loss of contract, loss of use, loss of corruption of data or information; or

(ii) any punitive, special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

(b) the total liability of either Party in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Services shall be limited to the total fees paid for the relevant Services in any one year.

11. TERMINATION

11.1 The Supplier may cancel a Session or terminate this Agreement at any time on reasonable written notice to the Client and, provided the Client is not in default of this Agreement, (in particular paragraphs 6.5, 6.6, 6.7, 6.8 and 6.9), the Supplier shall refund any sums already paid by the Client in respect thereof or credit any invoices that have been delivered to the Client in relation to agreed Services subsequently not supplied. Such sums shall be the entire liability of the Supplier for such cancellation or termination.

11.2 The Client may terminate this Agreement without cause on more than 28 days written notice to the Supplier.

11.3 Without prejudice to any other rights or remedies which the Parties may have, either Party may terminate this Agreement without liability to the other immediately on giving notice to the other if:

(a) the other Party commits a material breach of any provision 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 of the breach; or

(b) (i) the other Party is adjudicated bankrupt; (ii) a voluntary or involuntary petition in bankruptcy is filed against the other Party and such petition is not dismissed within ninety (90) days of the filing date; (iii) the other Party becomes insolvent or makes an assignment for the benefit of its creditors pursuant to any bankruptcy law; (iv) a receiver is appointed for the other Party or its business or any part thereof; or, (v) the other Party ceases, or threatens to cease, to carry on its business; or

(c) the other Party takes any action or permits any act or omission which, as a consequence, puts at peril any Intellectual Property Rights of the other Party.

11.4 On termination of this Agreement for any reason:

(a) the Client shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices with interest, if applicable and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable in full immediately on receipt; and

(b) the accrued rights of the Parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall remain in effect until fulfilled.

13. FORCE MAJEURE

13.1 Neither Party shall have liability to the other Party under this Agreement if such Party is prevented from or delayed in performing its obligations under this Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, act of terrorism, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.

14. ASSIGNMENT

14.1 The Client shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

14.2 The Supplier may at any time assign, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement; provided, that the Supplier will:

(a) secure the services of any sub-contractor on terms that are no less restrictive concerning maintaining the confidentiality of materials, and providing that the Supplier is solely responsible for making all payments to the sub-contractor; and

(b) be solely responsible for overseeing the performance of the sub-contractor and shall be and remain responsible for any act or omission of the sub-contractor.

15. NO PARTNERSHIP OR AGENCY

15.1 Nothing in this Agreement is intended to, or shall operate to, create a partnership between the Parties, or to authorize either Party to act as agent for the other.

16. NOTICES

16.1 Notice given under this Agreement shall be in writing, sent for the attention of the person, and to the address or email (with confirmation of transmission), given in this Agreement (or such other address, email or person as the relevant party may notify to the other party) and shall be delivered personally or by overnight delivery service, sent by email or sent by registered or certified mail, return receipt requested.

16.2 A notice is deemed to have been received, if delivered personally or by overnight delivery, at the time of delivery; in the case of email, at the time of transmission, in the case of mail, three business days from the date of mailing.

17. MISCELLANEOUS

17.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the laws of the England. The Parties irrevocably agree that the English Courts shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter.

17.2 This Agreement is made for the benefit of the Parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, any third party.

17.3 Except as otherwise set forth in this Agreement, no amendment of this Agreement, a Quote or of any of the documents referred to herein shall be valid unless it is in writing and signed by or on behalf of each of the Parties.

17.4 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and the circumstances for which it is given. The waiver by either Party of a breach or a default of any provision shall not be construed as a waiver of any succeeding breach of the same or any other provision.

17.5 This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter thereof, and supersedes all prior agreements, arrangements and understandings, written and oral, relating to the subject matter hereof.

17.6 The invalidity or unenforceability of any particular provision of this Agreement does not affect the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision has been omitted. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal; and, in the event the foregoing cannot be accomplished, then the Parties will attempt to substitute for an invalid, unenforceable or illegal provision a valid, enforceable and legal provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.

17.7. The transmission of a signed counterpart of this Agreement electronically or by facsimile shall be treated as the delivery of the original thereof.

17.8 Paragraph headings shall not affect the interpretation of this Agreement. A “person” includes a natural person, corporation, Limited Liability Company, Plc, governmental organization or any other entity. Words in the singular shall include the plural and vice versa. A reference to writing or written includes email or any other form of digital or electronic media. Where the words include(s), including or in particular are used in this Agreement, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.

 

 

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