These terms and conditions (“the Conditions”) apply to all purchases and orders of the Services provided by Plainsight Media Limited (“the Contractor”).
1.1 The definitions and rules of interpretation in this Condition apply in these Conditions.
Advertiser: means any person, firm or company who is acting as a Customer, places an Order with the Contractor.
Advertising: means digital advertising content and application to be provided in a digital format to the Contractor to be displayed on the Screens.
Advertising Agency: means any person, firm or company or outdoor specialist recognised as an Advertising Agency by the Contractor and who acting as a Customer gives an Order.
Advertising Airtime: means the amount of Screen time devoted to the Customer for Advertising in accordance with Condition 5 and as otherwise agreed from time to time.
Advertising Copy: means any advertising material, in any format, intended for display
Contract means the Customer’s purchase or order of the Services and the Contractor’s acceptance of it in accordance with Condition 2.2 and the Customer’s Order and the acceptance of it in accordance with Condition 5.
Customer means the person, firm or company who purchases the Advertising Airtime from the Contractor and shall include any Advertiser or Advertising Agency and shall include their successor in title and assigns who gives an order as the Customer to the Contractor and as such is liable for payment for display of Advertising.
Customer Order means the sales order placed by the Customer for the purchase of the Services with the Contractor whether confirmed in writing, over the telephone or by implication through conduct of the Customer and the Contractor and confirmed by the Contractor in accordance with these Conditions and which shall include the Display Date and the Display Period and shall also be referred to Customer Order or Order throughout these conditions.
Data Protection Legislation: up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter (i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998
Data Controller: has the meaning set out in section 1(1) of the Data Protection Act 1998.
Data Subject: an individual who is the subject of Personal Data.
Display Period: means the period during which the Advertising Copy is to be displayed by the Contractor in accordance with the Order.
Display Period Start Date: means the date from which the Advertising Copy will be displayed.
Document means and 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.
GDPR: General Data Protection Regulation ((EU) 2016/679).
Intellectual Property Rights means all patents, rights to inventions, utility models, copyright and related rights, trade marks, 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 rights, 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.
Key Person means the Customer’s Key Person appointed to manage the Services in accordance with Condition 4.1.
Personal Data: has the meaning set out in section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, in respect of which the Customer is the Data Controller and in relation to which the Contractor is providing Services under the Contract.
Processing and process: have the meaning set out section 1(1) of the Data Protection Act 1998 as updated by the General Data Processing Regulations 2018.
Production Specifications: means the last published document headed Production Specifications published by the Contractor in relation to the Site(s) in respect of which an Order has been placed.
Screen(s): means the screen(s) on which the Advertising (digital, static or scroller) is displayed, situated at the Site(s).
Services means the services to be provided by the Contractor under this Contract as set out in the Customer Order together with any other services which the Contractor provides or agrees to provide to the Customer.
Site(s): means the physical location of where the Contractor will display the Advertising Copy on the Screen in accordance with the Order.
Contractor’s Manager means the Contractor’s manager for the Services appointed under Condition 3.2 who shall be a Director of the Contractor.
VAT means value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Condition, schedule and paragraph headings shall not affect the interpretation of this Contract.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.
1.4 The background shall form part of this Contract and shall have effect as if set out in full in the body of this Contract. Any reference to this Contract includes the background.
1.5 Words in the singular shall include the plural and vice versa.
1.6 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.7 A reference to writing or written includes faxes but not e-mail.
1.8 Where the words include(s), including or in particular are used in this Contract, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.9 Any obligation in this Contract on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.10 References to conditions are to the conditions of this Contract.
2. Application of these Conditions
2.1 These Conditions shall:
(a) apply to, and be incorporated into the Contract, and;
(b) prevail over any inconsistent terms and conditions contained in or referred to in the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2.2 The Customer’s purchase order, or the Customer’s acceptance of a quotation for Services by the Contractor, constitutes an offer by the Customer to purchase the Services specified in it on these Conditions. No offer placed by the Customer shall be accepted by the Contractor other than:
(a) by a written acknowledgement issued and executed by the Contractor; or
(b) (if earlier) by the Contractor starting to provide the Services, when a contract for the supply and purchase of the Services on these Conditions will be established. The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.
2.3 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Contractor unless in writing and signed by a duly authorised representative of the Contractor.
3. Contractor’s Obligations
3.1 The Contractor shall use reasonable endeavours to provide the Services, and to deliver to the Customer, in accordance with the Customer Order in all material respects.
3.2 The Contractor shall use reasonable endeavours to meet any performance dates specified in the Customer Order but any such dates shall be estimates only and time for performance by the Contractor shall not be of the essence of this Contract. The Contractor shall appoint the Contractor’s Manager who shall have authority contractually to bind the Contractor on all matters relating to the Services. The Contractor shall use reasonable endeavours to ensure that the same person acts as the Contractor’s Manager in the delivery of the Services, but may replace him from time to time where reasonably necessary in the interests of the Contractor’s business.
3.3 The Contractor shall use reasonable endeavours to observe all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer’s premises and that have been communicated to it under Condition 4.1(e), provided that it shall not be liable under this Contract if, as a result of such observation, it is in breach of any of its obligations under this Contract.
3.4 The Contractor reserves the right to vary these Conditions from time to time without notice.
4. Customer’s Obligations
4.1 The Customer shall:
(a) co-operate with the Contractor in all matters relating to the Services and appoint the Key Person in relation to the Services, who shall have the authority contractually to bind the Customer on matters relating to the Services;
(b) provide, for the Contractor, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as required by the Contractor or any of them;
(c) provide, in a timely manner, all such Documents, information and materials including computer programs data reports and specifications and other information as the Contractor may require, and ensure that it is accurate in all material respects;
4.2 If the Contractor’s performance of its obligations under this Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Contractor shall not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay.
4.3 The Customer shall be liable to pay to the Contractor, on demand, all reasonable costs, charges or losses sustained or incurred by the Contractor (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under this Contract, subject to the Contractor confirming such costs, charges and losses to the Customer in writing.
4.4 The Customer shall not, without the prior written consent of the Contractor, at any time from the date of this Contract to the expiry of 24 months after the last date of supply of the Services solicit or entice away from the Contractor or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Contractor in the provision of the Services.
4.5 Any consent given by the Contractor in accordance with Condition 4.4 shall be subject to the Customer paying to the Contractor a sum equivalent to 20% of the then current annual remuneration of the Contractor’s employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.
4.6 The Customer shall ensure (and shall be solely liable for ensuring) that the Advertising conforms in all material aspects with all relevant codes and laws of advertising laid down whether on a statutory, legal or a self-regulatory basis (including but not limited through the ASA and OFCOM) and shall ensure that the Advertising displayed on the Screens shall not contain any material that is defamatory, offensive, libellous or blasphemous or which infringes the statutory or common law right of third parties, including without limitation, Intellectual Property Rights. The Contractor may inform the Customer if the Contractor has any concerns in this regard which the Customer must promptly consider and use its best endeavours to remedy. In any event the Contractor (acting reasonably), reserves the right to refuse to display and/ or remove any Advertising during Advertising Airtime on the Screens if it deems this an appropriate action or if the Contractor is instructed to do so by any statutory, legal or regulatory body.
4.7 In addition to condition 4.6, the Customer shall be responsible for obtaining and paying for all necessary licences and consents for the display of Advertising and/or any copyright material contained in the Advertising or the appearance of any person in the Advertising.
4.8 Subject to this condition 4, the Customer warrants, represents and undertakes that delivery of the Advertising shall be made in good time for the Advertising Airtime and such Advertising shall comply with this condition 4. The Customer further warrants, represents and undertakes that all Advertising shall be delivered to the Contractor in strict accordance with the Product Specification.
4.9 The Customer agrees that the Advertising shall not include any code, tag, image, or device of any kind which enables viewers of the Advertising to interact with the Advertising via mobile technology or other wireless means, nor shall such device be attached, affixed or installed onto or in the Screens, without the Contractor’s consent, which the Contractor reserves the right to give, subject to conditions.
4.10 All Advertising Copy is to be delivered as requested, postage, carriage and transportation costs paid and shall be supplied to the Contractor in the format(s) and to the place(s) specified by the Contractor, and in accordance with the Production Specifications of the particular Sites and to enable the Contractor to maintain the display in good condition.
4.11 In the event that the Parties agree that the Contractor will undertake production of Advertising Copy, then the Customer shall adhere to the Production Specifications and provide all detail necessary to allow such production to take place within the necessary timeframe.
4.12 Should the Customer fail to deliver Advertising Copy in accordance with this condition 4 the Contractor is not obliged to display the undelivered Advertising Copy but the Contractor shall, nonetheless, be liable to pay the corresponding fees as set out in the Customer Order. The Contractor will use reasonable endeavours to display the undelivered Advertising Copy but without any commitment to meet the Display Period Start Date.
4.13 A part delivery of the Advertising Copy or a delivery not meeting the Production Specification or the provisions of this condition 4 shall be deemed to be no delivery for the purposes of this condition.
4.14 Delivery of Advertising Copy shall not be deemed to have been made if any proposed bespoke posting instructions have not been finalised and given to and received by the Contractor.
4.15 Any Advertising Copy used during a campaign shall be disposed of in such manner as the Contractor shall decide, unless agreed otherwise at the time of Customer Order.
4.16 The Advertiser expressly permits the Contractor to photograph the Advertising Copy on all Sites and use such photographs in any and all marketing materials.
5. Charges and Payment for the Services
5.1 In consideration of the provision of the Services by the Contractor, the Customer shall pay the charges as set out in the Customer Order, which shall specify whether they shall be on a time and materials basis, a fixed price basis or a combination of both. Condition 15.2 shall apply if the Contractor provides Services on a time and materials basis and Condition 15.3 shall apply if the Contractor provides Services for a fixed price. The remainder of this Condition 15 shall apply in either case.
5.2 Where Services are provided on a time and materials basis (the “Optional Services”):
(a) the charges payable for the Services shall be calculated in accordance with the Contractor’s standard daily fee rates as amended from time to time as notified to the Customer by the Contractor in accordance with Condition 15.6;
(b) all charges quoted to the Customer shall be exclusive of VAT, which the Contractor shall add to its invoices at the appropriate rate;
(c) the Contractor shall invoice the Customer monthly in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this Condition 15.2 and Condition 15.4
5.3 Where Services are provided for a fixed price, the total price for the Services shall be the amount set out in the Customer Order as amended from time to time in accordance with Condition 15.6. The Customer shall pay the total price to the Contractor (without deduction or set-off) in instalments, as set out in the Customer Order. At the end of a period specified in the Customer Order, the Contractor shall invoice the Customer for the charges that are then payable, together with expenses, the costs of materials and VAT, where appropriate, calculated as provided in Condition 15.4.
5.4 Any fixed price contained in the Customer Order excludes the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Contractor engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by the Contractor for the supply of the Services. Such expenses, materials and third party services shall be invoiced by the Contractor at cost where applicable/agreed.
5.5 Where there is a Fault, the Customer will pay all costs incurred and any other expenses reasonably incurred by the Contractor in connection with the work carried out by the Contractor in connection with and in dealing with any Fault howsoever it has occurred. Such costs may include those set out in Condition 15.2.
5.6 In addition to the obligations contained within Condition 15.2, and with the exception of Condition 15.4, the parties agree that the Contractor may review and increase the charges set out in the Customer Order. The Contractor shall give the Customer written notice of any such increase 60 days before the proposed date of that increase. The Customer shall pay each invoice submitted to it by the Contractor, in full and in cleared funds, via Direct Debit (the Contractor permitted by virtue of these Conditions to vary such sums payable by Direct Debit where necessary) for the following month together with any additional charges incurred and determined in accordance with Conditions 15.2 and 15.3 that there may be for the preceding month. Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Contractor on the due date, the Contractor may:
(a) charge interest on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of HSBC Bank PLC, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Contractor may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and the Customer shall pay the interest immediately on demand; and
(b) suspend all Services until payment has been made in full.
5.7 Time for payment shall be of the essence of this Contract.
5.8 All sums payable to the Contractor under this Contract shall become due immediately on its termination (including all such reasonably and properly incurred costs in pursuit of payment (including legal costs) from the Customer in accordance with this Contract), despite any other provision. This Condition 15.8 is without prejudice to any right to claim for interest under the law, or any such right under this Contract.
5.9 The Contractor may, without prejudice to any other rights it may have, set off any liability of the Customer to the Contractor against any liability of the Contractor to the Customer.
5.10 The fees as specified in the Customer Order are for use of Advertising Airtime and space only and do not include charges for creation, design, production and/or delivery of Advertising or Value Added Tax. All additional charges in connection with any additional services provided the Contractor shall be agreed to in writing by the parties and such matters shall be governed by the terms of these terms and conditions.
5.11 For the avoidance of doubt the Contractor will not accept any cancellations of Advertising display in October, November and December. The Customer will be liable for full payment for orders in these months.
5.12 Provided always that in the event of a Customer giving notice to cancel a display out of the timeframes specified herein then the Contractor will accept such a notice on payment of the following percentages of the total gross contract price, namely:
◦15 % if less than 90 days but 75 or more days’ notice is given;
◦30% if less than 75 days but 60 or more days’ notice is given;
◦40% if less than 60 days but 45 or more days’ notice is given;
◦70% if less than 45 days but 30 or more days’ notice is given;
◦90% if less than 30 days but more than 14 days’ notice is given; and
◦100% if less than 14 days’ notice is given.
5.13 In all circumstances and on all occasions where the Customer Order has been cancelled for whatever reason the Contractor reserves the right in its sole discretion to resell the Advertising Airtime to any other third party without reference to any party.
5.14 If the Contractor provides the Customer with an incorrect Product Specification and the Contractor has not corrected such error by submitting to the Customer the correct Product Specification within a reasonable time to allow the Customer to ensure Advertising is delivered to Contractor in accordance with the correct Product Specification timely prior to display, the Contractor may make available a credit to the Customer equivalent to the value of the Advertising so affected. For the avoidance of doubt, a failure in a Screen’s functionality due to a third party failure to supply electricity shall not constitute a breach on the part of Contractor and no credit shall be due in this respect. In the event that the Customer is an agency acting on behalf of an advertiser, the Customer warrants and undertakes to pass such credit (if applicable) onto its client.
5.15 The Customer must submit all claims for credit under the terms herein to Contractor in writing within 21 days following the end of the period of display noted on the relevant invoice with sufficient information to enable the Contractor to consider the claim. The Contractor shall not be required to consider any claim submitted after the due date. The Contractor will only consider a credit claim if it has been notified of a fault
6. Intellectual Property Rights
6.1 As between the Customer and the Contractor, all Intellectual Property Rights and all other rights shall be owned by the Contractor. Subject to Condition 16.2, the Contractor licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Services. If this Contract is terminated, this licence will automatically terminate.
7. Confidentiality and the Contractor’s Property
7.1 The Customer shall keep in strict confidence all technical, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Contractor, its employees, agents, consultants or subcontractors and any other confidential information concerning the Contractor’s business or its products which the Customer may obtain.
7.2 The Customer may disclose such information:
(a) to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer’s obligations under this Contract; and
(b) as may be required by law, court order or any governmental or regulatory authority.
7.3 The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this Condition 17.
7.4 The Customer shall not use any such information for any purpose other than to perform its obligations under this Contract.
7.5 All materials, equipment and tools, drawings, specifications and data supplied by the Contractor to the Customer (including Know-How) shall, at all times, be and remain the exclusive property of the Contractor, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Contractor, and shall not be disposed of or used other than in accordance with the Contractor’s written instructions or authorisation.
8. Limitation of Liability – The Customer’s Attention is Particularly Drawn to this Condition
8.1 This Condition 18 sets out the entire financial liability of the Contractor (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Customer in respect of:
(a) any breach of this Contract, including any deliberate personal repudiatory breach;
(b) any use made by the Customer of the Services, or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Contract.
(d) any matter in respect of which it would be unlawful for the Contractor to exclude or restrict liability.
8.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Contract.
8.3 Nothing in this Contract limits or excludes the liability of the Contractor:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Contractor.
8.4 Subject to Condition 18.2 and Condition 18.3
(a) the Contractor shall not be liable for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill and / or similar losses; or
(iv) loss of corruption of data information; or
(v) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) the Contractor’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Contract shall be limited to the price paid for the Services.
9. Data Protection and data processing
9.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 17 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
9.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Contractor is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
9.3 Without prejudice to the generality of clause 17.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Contractor for the duration and purposes of the Contract.
9.4 Without prejudice to the generality of clause 17.1, the Contractor shall, in relation to any Personal Data processed in connection with the performance by the Contractor of its obligations under the Contract:
(a) process that Personal Data only on the written instructions of the Customer unless the Contractor is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Contractor to process Personal Data (Applicable Data Processing Laws). Where the Contractor is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Contractor shall promptly notify the Customer of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit the Contractor from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c ) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled.
9.5 Either party may, at any time on not less than 30 days’ notice, revise this clause 17 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
10.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate this Contract without liability to the other on giving the other not less than one months’ written notice to the other if:
(a) the other party fails to pay any amount due under this Contract on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment; or
(b) the other party commits a material breach of any of the material terms of this Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(c) the other party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
(d) the other party commences negotiations with all, or any class of, its creditors with a view to rescheduling any of its debts, or makes a proposal for, or enters into any compromise or arrangement with, its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies, or the solvent reconstruction of that other party; or
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies, or the solvent reconstruction of that other party; or
(f) an application is made to court, or an order is made, for the appointment of an administrator, a notice of intention to appoint an administrator is given, or an administrator is appointed over the other party; or
(g) a floating charge holder over the assets of that other party has become entitled to appoint, or has appointed, an administrative receiver; or
(h) a person becomes entitled to appoint a receiver over the assets of the other party, or a receiver is appointed over the assets of the other party; or
(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Condition 20.1(c) to Condition 20.1(i) (inclusive); or
(k) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(l) there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001).
10.2 On termination of this Contract for any reason:
(a) the Customer shall immediately pay to the Contractor all of the
Contractor’s outstanding unpaid invoices and interest and, in respect of Services but for which no invoice has been submitted, the Contractor may submit an invoice, which shall be payable immediately on receipt together with any other costs incurred by the Contractor in the provision of the Services as evidenced by the Contractor in writing; and
(b) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
10.3 On termination of this Contract (however arising) the following Conditions shall survive and continue in full force and effect:
(a) Condition 15;
(b) Condition 16;
(c) Condition 17;
(d) Condition 19; and
(e) Condition 30.
11. Force Majeure
11.1 A party, provided that it has complied with the provisions of Condition 21.2, shall not be in breach of this Contract, nor liable for any failure or delay in performance of any obligations under this Contract (and, subject to Condition 21.3, the time for performance of the obligations shall be extended accordingly) arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (Force Majeure Event), including but not limited to any of the following:
(a) acts of God, including but not limited to fire, flood, earthquake, windstorm or other natural disaster;
(b) terrorist attack, civil war, civil commotion or riots;
(c) voluntary or mandatory compliance with any law (including a failure to grant any licence or consent needed or any change in the law or interpretation of the law);
(d) fire, explosion or accidental damage;
(e) extreme adverse weather conditions;
(f) collapse of building structures, failure of plant machinery, machinery, computers or vehicles;
(g) any labour dispute, including but not limited to strikes, industrial action or lockouts;
(h) non-performance by Contractors or subcontractors (other than by companies in the same group as the party seeking to rely on this Condition); and
(i) interruption or failure of utility service, including but not limited to electric power, gas or water.
11.2 Any party that is subject to a Force Majeure Event shall not be in breach of this Contract provided that:
(a) it promptly notifies the other party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance;
(b) it could not have avoided the effect of the Force Majeure Event by taking precautions which, having regard to all the matters known to it before the Force Majeure Event, it ought reasonably to have taken, but did not; and
(c) it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under this Contract in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
11.3 If the Force Majeure Event prevails for a continuous period of more than Two months, either party may terminate this Contract by giving 10 working days’ written notice to all the other party. On the expiry of this notice period, this Contract will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this Contract occurring prior to such termination.
Subject to Conditions 2 and 5, no variation of this Contract or of any of the documents referred to in it shall be valid unless it is in writing and signed by or on behalf of each of the parties.
13.1 Failure to exercise, or any delay in exercising, any right or remedy provided under this Contract or by law shall not constitute a waiver of that (or any other) right or remedy, nor shall it preclude or restrict any further exercise of that (or any other) right or remedy.
13.2 No single or partial exercise of any right or remedy provided under this Contract or by law shall preclude or restrict the further exercise of any such right or remedy.
13.3 A waiver (which may be given subject to conditions) of any right or remedy provided under this Contract or by law shall only be effective if it is in writing and shall apply only to the party to whom it is addressed and for the specific circumstances for which it is given. It shall not prevent the party who has given the waiver from subsequently relying on the right or remedy in other circumstances.
13.4 A party that waives a right or remedy provided under this Contract or by law in relation to another party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
13.5 Unless specifically provided otherwise, rights arising under this Contract are cumulative and do not exclude rights provided by law.
14.1 If any provision of this Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
14.2 If a provision of this Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.
15. Entire Agreement
15.1 This Contract and any documents referred to in it constitutes the whole Contract between the parties and supersedes any previous arrangement, understanding or Contract between them relating to the subject matter of this Contract.
15.2 Each party acknowledges that, in entering into this Contract and the documents referred to in it, it does not rely on any statement, representation, assurance or warranty (Representation) of any person (whether a party to this Contract or not) other than as expressly set out in this Contract or those documents. Each party agrees that the only remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this Contract.
15.3 Nothing in this Condition shall limit or exclude any liability for fraud.
16.1 The Customer shall not, without the prior written consent of the Contractor, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under this Contract.
16.2 The Contractor may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under this Contract.
16.3 Each party that has rights under this Contract is acting on its own behalf and not for the benefit of another person.
17. No Partnership or Agency
Nothing in this Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
18. Rights of Third Parties
A person who is not a party to this Contract shall not have any rights under or in connection with it.
19.1 Any notice or other communication required to be given under this Contract shall be in writing and shall be delivered personally, or sent by recorded delivery or by commercial courier to the other party and for the attention of the person specified at 29.5, or as otherwise specified by the relevant party by notice in writing to the other party.
19.2 Any notice shall be deemed to have been duly received if delivered personally, when left at the address and for the contact referred to at 29.5 or, if sent by recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
19.3 This Condition 29 shall not apply to the service of any in any proceedings or other documents in any legal action.
19.4 A notice or other communication required to be given under or in connection with the Contract shall not be validly served if sent by e-mail.
19.5 The addresses for service of a notice or other communication are set out in the Customer Order.
20. Dispute Resolution
20.1 If any dispute arises in connection with this Contract, the Contractor’s Manager and the Key Person shall, within 5 days of a written request from one party to the other, meet in a good faith effort to resolve the dispute.
20.2 If the dispute is not resolved at that meeting, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation, a party must give notice in writing (ADR notice) to the other party requesting a mediation. A copy of the request should be sent to CEDR Solve. The mediation will start not later than 5 days after the date of the ADR notice.
20.3 No party may commence any court proceedings or arbitration in relation to any dispute arising out of this Contract until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
21. Governing Law and Jurisdiction
This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.