Terms

The Client's attention is drawn in particular to the provisions of clause 13 (Limitation of Liability)

1. INTERPRETATION


1.1 Definitions
Applicable Laws: all applicable laws, statutes, regulations from time to time in force.
Applicable Data Protection Laws: means:
  1. 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.
  2. 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 the Provider is 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.
Business Hours: the period from 9.00 am to 6.00 pm on any Business Day.
Charges: means the fees and expenses to be paid to the Provider in consideration for the supply of Services, as detailed in the Specification.
Client: means the party requesting services from the Provider.
Client Background IPR: means all IPR owned by or licenced to the Client, or developed by or on behalf of the Client independently of this Agreement but excluding Third Party IPR and Provider Background IPR.
Client Default: means by any act or omission by the Client or failure by the Client that prevents or delays the Provider in providing the Services.
Commencement Date: means the date on which the Provider provided any Services as stated in the Order Confirmation.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 23.
Contract: means the contract between the Client and Provider for the sale and purchase of services in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.
Client Materials: all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to the Provider in connection with the Services.
Client Personal Data: any personal data which the Provider processes in connection with this Agreement, in the capacity of a processor on behalf of the Client.
Effective Date: means the date for the coming into force of this Agreement as set out in the Specification or, if no date is set in the Specification, the date of execution of this Agreement.
EU GDPR: means the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.
Foreground IPR: means IPR produced by the Provider which subsists in the Services or which result from or comes into existence as a result of supplying the Services, but excluding Provider Background IPR, Client Background IPR and Third Party IPR.
Health and Safety: means the health and safety of any person
H&S Legislation: means the Health and Safety at Work etc. Act 1974 and all applicable laws, regulations, directives, codes of practice and other similar controls and advice made or issued by national or local government or by any other regulatory body, relating to Health and Safety.
Intellectual Property Rights (IPR): means all intellectual property rights, wherever in the world, whether registrable or unregistrable, 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 in patents, utility models, moral rights, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names, trade names, domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets).
Parties: means the Client and Provider as per the Contract. Each Party is responsible for their appointed third parties.
Provider: means Projection Artworks Ltd trading as Pixel Artworks in the United Kingdom.
Provider Background IPR: means all IPR owned by or licenced to the Provider, or developed by or on behalf of the Provider independently of the Contract but excluding the Third Party Materials.
Provider's Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Provider to the Client and used directly or indirectly in the supply of the Services including any such items specified in the Schedule to the Contract but excluding any such items which are the subject of a separate agreement between the parties under which title passes to the Client.
Provider’s Personal Data: any personal data which the Provider processes in connection with the Contract, in the capacity of a controller.
Services: means the services to be provided to the Client including the creative studio images and the set-up, operation and removal of equipment to display the images, as described in the Specification.
Specification: means the document detailing the agreed Services, delivery dates, charges and payment terms as set out in the Schedule to the Contract.
Third Party Materials: means software, images, 3D models, stock footage or other assets used by the Provider to create and deliver the Services but which is owned by a third party.
Third Party IPR: means the IPR in any Third Party Materials.
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.
Work Product: any output of the Services to be provided by the Provider to the Client as specified in the Schedule and any other materials, documents, products, materials, designs, configurations, software, drawings, models, data and other information provided by the Provider to the Client in relation to the Services (excluding the Provider's Equipment).

1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of the Contract.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4. The Schedule forms part of the Contract and shall have effect as if set out in full in the body of the Contract. Any reference to the Contract includes the Schedule.

1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.8 The Contract shall be binding on, and enure to the benefit of, the parties to the Contract and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns.

1.9 Unless expressly provided otherwise in the Contract, a reference to legislation or a legislative provision is a reference shall include all subordinate legislation made from time to time under that legislation or legislative provision.

1.10 A reference to writing or written includes fax and email.

1.11 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

1.12 A reference to the Contract or to any other agreement or document referred to in the Contract is a reference of the Contract or such other agreement or document, in each case as varied or novated (in each case, other than in breach of the provisions of the Contract) from time to time

1.13 References to clauses and Schedules are to the clauses and Schedules of the Contract and references to paragraphs are to paragraphs of the relevant Schedule.

1.14 The documents forming the Contract are deemed to be as mutually explanatory of one another. If there is an inconsistency between such documents and the Contract, the order of precedence of document in interpreting the Contract shall be as follows:
  1. Schedule;
  2. General Conditions;
  3. Order Confirmation; and
  4. The Provider’s Proposal and quotation
1.15 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. BASIS OF CONTRACT


2.1. These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.2. The Order constitutes an offer by the Client to purchase the Services in accordance with these Conditions. The Client is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.

2.3. The Order shall only be deemed to be accepted when the Provider issues a written acceptance of the Order, at which point the Contract shall come into existence.

2.4. The Client waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Client that is inconsistent with these Conditions.

2.5. Any samples, drawings, descriptive matter or advertising produced by the Provider and any descriptions or illustrations contained in the Provider’s marketing materials are produced for the sole purpose of giving an approximate idea of the Services referred to in them. They shall not form part of the Contract nor have any contractual force.

2.6. The Proposal and quotation for the Services given by the Provider shall not constitute an offer. The Proposal and quotation shall only be valid for the period of time stated at the date of its issue.

3. PROVIDER OBLIGATIONS


The Provider shall:

3.1. provide the Services as described in the Specification and shall use reasonable endeavours to meet the delivery dates but any such dates shall be estimates only and time for performance by the Provider shall not be of the essence of the Contract;

3.2. perform the Services with all the due skill, knowledge, and care which may be reasonably expected of an experienced provider of similar services;

3.3. deploy suitably qualified, experienced and competent employees, contractors and other personnel as required to deliver the Services;

3.4. comply with the Client’s Health and Safety requirements whilst on the Client’s site;

3.5. adhere to the Provider’s Health and Safety policies and procedures;

3.6. inform the Client when sub-contracting elements of the Services and be fully responsible to the Client for such sub-contracts; and

3.7. save where the Client is aware that a show or event is an unlicensed or guerrilla event, or where the Client has agreed to obtain required permissions, obtain the licences, permissions and consents required for licenced shows and events.

4. CLIENT OBLIGATIONS


The Client shall:

4.1. not delay the Provider in the performance of the Services and shall within a reasonable time give the Provider, free of cost, all information reasonably requested by the Provider for the purpose of the Contract, provided that the Client is able to obtain such information and the information may reasonably be required by the Provider to perform the services;

4.2. on all matters properly and reasonably referred to it in writing by the Provider, give its decision in writing within a reasonable time so as not to materially delay the Provider’s performance of the Services;

4.3. make available to the Provider, free of cost, for the purpose of the Services, the equipment and facilities as described in the Order Confirmation [Personnel, Equipment, Facilities and Services of others to be provided by the Client]. The Client shall ensure that all such equipment, facilities and services are of adequate specification and in good working order and are provided by competent and experienced personnel using appropriate care and skill and in line with H&S Legislation;

4.4. take reasonable care of the Provider’s equipment to safeguard its safety and security whilst on sites controlled by the Client;

4.5. ensure that any support structure supplied by the Client is competently designed and installed and complies with H&S Legislation;

4.6. acknowledge and accept that unlicensed or guerrilla events do not have building owner or local authority permissions; and

4.7. grant the Provider permission to use photographic and video assets of all displayed images and installations for its own advertising and promotion purposes.

4.8. Client default

If the Provider’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (“Client Default”):

4.8.1. without limiting or affecting any other right or remedy available to it, the Provider shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays the Provider’s performance of any of its obligations; and

4.8.2. the Provider shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Provider’s failure or delay to perform any of its obligations.

5. CHARGES AND PAYMENT


5.1. The Provider will invoice for the Charges as set out in the Specification (including, for the avoidance of doubt, mobilisation fees and any instalment invoices).

5.2. The Client will pay the Charges as invoiced and adhere to the payment terms specified in the Specification.

5.3. UK Value Added Tax as applicable will be added to Charges.

5.4. The charges 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).Any withheld taxes or other deductions levied on the Services by non-UK tax authorities or other organisations are the Client’s responsibility and the Client hereby agrees to pay the Charges net of any such non-UK taxes or deductions.

5.5. Except where the Specification states that a shorter period of payment following invoicing is required, the Client shall pay all invoices within 30 days of their issue by the Provider.

5.6. The Provider shall retain ownership of any Work Product or asset until the Client has paid the Charges in full.

5.7. In addition to any remedy available at law, the Provider shall be entitled to default interest at an annual rate of interest 8 percentage points above the Bank of England official Bank Rate running from the date that the invoice is due to be paid until the date of payment in full.

6. VARIATION AND TERMINATION


6.1. Either party may, at any time, modify the scope of the Services outlined in the Order Confirmation (a Variation) by issuing a Variation Order. If required by the Client, the Provider shall submit a proposal for such Variation. The Parties shall discuss and negotiate in good faith any adjustment to the Schedule and/or the Fee arising from such Variation order.

6.2. The Provider shall not make any variation to the Services unless and until the Client issues an instruction in writing and duly signed by the authorised representative of the Client as set out in the Order Confirmation.

6.3. If the Provider’s capacity to provide the Services are impeded or delayed by the Client or its contractors so as to increase the scope, cost or duration of the Services:

6.3.1 the Provider shall inform the Client within 7 (seven) days of the circumstances arising and probable effects;

6.3.2 the increase in scope and/or costs shall be regarded as a Variation; and

6.3.3 the Time for Completion of the Services shall be amended accordingly, as necessary.

6.4. Without affecting any other right or remedy available to it, either party may terminate the Contract immediately on written notice to the other if the other party commits a material breach (“Breach Termination”) of the Contract and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days of being notified in writing to do so.

6.5. A party may terminate the Contract if the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business (“Insolvency Termination”).

6.6. Either party may cancel the Contract in circumstances not involving breach by the other party by giving, at least 7 days written notice to the other party (“No Fault Termination”).

6.7. In the event of No Fault Termination by the Client, or in the event of Breach or Insolvency Termination by the Provider, the Client shall pay any termination or cancellation charges as set out in the Specification. Alternatively, if the Specification does not include specific cancellation charges the Client shall pay all charges in respect of all work done to date and any reasonable demobilisation charges which are agreed between the parties.

7. OBLIGATIONS ON TERMINATION AND SURVIVAL


7.1 Obligations on termination or expiry

On termination or expiry of the Contract:
  1. the Client shall immediately pay to the Provider all of the Provider's outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Provider may submit an invoice, which shall be payable immediately on receipt;
  2. the Client shall, return all of the Provider's Equipment. If the Client fails to do so, then the Provider may enter the Client's premises and take possession of the Provider's Equipment. Until they have been returned or repossessed, the Client shall be solely responsible for their safe keeping; and
  3. the Provider shall on request return any of the Client Materials not used up in the provision of the Services.
7.2 Survival
  1. On termination or expiry of the Contract, the following clauses shall continue in force: clause 1 (Interpretation), clause 9 (Intellectual property rights), clause 10 (Confidentiality), clause 13 (Limitation of liability), clause 7.1 (Obligations on termination), clause 19 (Waiver), clause 18 (Severance), clause 1.14 (Conflict), clause 16 (Governing law, language and jurisdiction).
  2. Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

8. FORCE MAJEURE EVENTS


8.1. Force Majeure Event means any circumstance not within a party's reasonable control including, without limitation:

  1. acts of God, flood, drought, earthquake or other natural disaster;
  2. epidemic or pandemic;
  3. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
  4. nuclear, chemical or biological contamination or sonic boom;
  5. any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
  6. collapse of buildings, fire, explosion or accident;
  7. any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party);
  8. non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and
  9. interruption or failure of utility service.

8.2. Adverse weather, including heavy rain and high winds, can affect outdoor projects and may reduce the effectiveness or quality of the show or event. If adverse weather is forecast to impact the project, the parties will discuss how to mitigate the impact and agree any changes to be implemented as a Variation.

8.3. Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeur Event, including, for the avoidance of doubt, adverse weather affecting delivery of the Services.

8.4. A Force Majeure Event shall not affect the Client’s obligation to pay for Services in accordance with clause 5 of the Contract.

9. INTELLECTUAL PROPERTY RIGHTS (IPR)


9.1 All Client Background IPR shall remain vested in and owned by the Client or its licensors. The Client hereby grants to the Provider a non-exclusive, royalty-free, non-transferable licence to use any Foreground and Client Background IPR solely for the purpose of enabling the Provider to create and supply the Services in accordance with the Contract.

9.2 All Provider Background IPR shall remain vested in and owned by the Provider or its licensors. The Provider hereby grants to the Client a non-exclusive, royalty-free, worldwide, perpetual and assignable licence to use, modify, develop, enhance and sub-license any Provider Background IPR which subsist in the Services and is necessary to enable the Client to receive and use the Services, and to exploit in any manner the Foreground IPR (whether during the Term or after its expiry or termination for any reason).

9.3 Third Party IPR remains owned by the third party but can be used by the Client subject to the third party’s licence terms. The Provider will inform the Client of the Third Party Materials to be used and the licence terms governing their use. The Client is responsible for adhering to the licence terms and for any consequences of mis-use.

9.4 Foreground IPR shall be owned as follows:

  1. In respect of Work Products, all IPRs that are specific to (i.e. embodied in and only usable with) that Work Product shall, on their creation, vest in the Client; and
  2. In respect of all other Foreground IPRs, these shall be owned by the Provider but the Client shall have a royalty free, worldwide perpetual and assignable licence to use, modify, develop, enhance and sub-license those IPRs for all uses of the Work Product.

10. CONFIDENTIALITY


10.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or providers/suppliers of the other party or of any member of the group of companies to which the other party belongs, (Confidential Information) except as permitted by clause 10.3.

10.2 Each party will protect the other party’s Confidential Information using at least reasonable security measures.

10.3 Each party may disclose the other party’s Confidential Information:

10.3.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall 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 12,; and

10.3.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

10.4 These obligations of confidentiality will not apply to Confidential Information that has been published or is known to the public (other than as a result of a breach of the Contract); is known to the receiving party, and can be shown by the receiving party to have been known to it, before disclosure by the other party; or is required to be disclosed by law, or by an order (binding upon the relevant party) of a competent governmental authority, regulatory body or stock exchange.

10.5 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

11. DATA PROTECTION


11.1 For the purposes of this clause 11, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.

11.2 Both parties will comply with all applicable requirements of the Applicable Data Protection Laws. This clause 11 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.

11.3 The parties have determined that for the purposes of Applicable Data Protection Laws:

(a) the Provider shall process the personal data as set out in paragraph 5 of the Schedule as processor on behalf of the Client; and

(b) the Provider shall act as controller of the personal data set out in paragraph 5 of the Schedule.

11.4 Should the determination in clause 11.3 change, the parties shall use all reasonable endeavours make any changes that are necessary to this clause 11 and paragraph 5 of the Schedule.

11.5 The Client consents to, (and shall procure all required consents, from its personnel, representatives and agents, in respect of) all actions taken by the Provider in connection with the processing of Client Personal Data, provided these are in compliance with the then-current version of the Provider's privacy policy available at https://www.pixelartworks.com/privacy (privacy policy). In the event of any inconsistency or conflict between the terms of the Privacy Policy and the Contract, the Privacy Policy will take precedence.

11.6 Without prejudice to clause 11.2, the Client and the Provider will ensure that each has all necessary appropriate consents and notices in place to enable lawful transfer of the Provider Personal Data and Client Personal Data to the Provider and/or lawful collection of the same by the Provider for the duration and purposes of the Contract.

11.7 In relation to the Client Personal Data, paragraph 5 of the Schedule sets out the scope, nature and purpose of processing by the Provider, the duration of the processing and the types of personal data and categories of data subject.

11.8 Without prejudice to clause 11.2, the Provider shall, in relation to Client Personal data:

  1. process that Client Personal Data only on the documented instructions of the Client unless the Provider is required by Applicable Laws to otherwise process that Client Personal Data (Purpose). Where the Provider is relying on Applicable Laws as the basis for processing Client Personal Data, the Provider shall notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Provider from so notifying the Client on important grounds of public interest. The Provider shall inform the Client if, in the opinion of the Provider, the instructions of the Client infringe Applicable Data Protection Laws;
  2. implement technical and organisational measures to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, which the Client has reviewed and confirms are 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;
  3. ensure that any personnel engaged and authorised by the Provider to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
  4. assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to the Provider), and at the Client's cost and written request, in responding to any request from a data subject and in ensuring the Client's compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
  5. notify the Client without undue delay on becoming aware of a personal data breach involving the Client Personal Data;
  6. at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the Contract unless the Provider is required by Applicable Law to continue to process that Client Personal Data. For the purposes of this clause 10.8(f), Client Personal Data shall be considered deleted where it is put beyond further use by the Provider; and
  7. maintain records to demonstrate its compliance with this clause 11.

11.9 The Client provides its prior, general authorisation for the Provider to:
  1. appoint processors to process the Client Personal Data, provided that the Provider:
    1. shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Provider in this clause 11;
    2. shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Provider; and
    3. shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to the Provider's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Client shall indemnify the Provider for any losses, damages, costs (including legal fees) and expenses suffered by the Provider in accommodating the objection.
  2. transfer Client Personal Data outside of the UK as required for the Purpose, provided that the Provider shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of the Provider, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).

11.10 Either party may, at any time on not less than 30 days' notice, revise this clause 11 (Data protection) 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).

11.11 The Provider's liability for losses arising from breaches of this clause 11 is as set out in clause 13.6.

12. REPRESENTATIONS AND WARRANTIES


12.1 Each party represents, warrants and undertakes to the other that:

  1. it has full capacity and authority to enter into and to perform the Contract;
  2. there are no actions, suits or proceedings or regulatory investigations pending or, to that party’s knowledge, threatened against or affecting that party before any court or administrative body that might affect the ability of that party to meet and carry out its obligations under the Contract; and
  3. the Contract will constitute its legal, valid and binding obligations.
12.2 The Provider represents, warrants and undertakes that:

  1. the Services shall be supplied in such a way as to not cause any interruption to the business of the Client and shall be suitable for the purposes indicated in the Specification;
  2. the Services shall meet the requirements set out in the Specification, be free from errors and defects and, unless otherwise specified in the Specification or specifically notified to the Client, not include any Open Source Software or Third Party Software;
  3. subject to the Client having obtained licences or permissions for the use of Third Party Materials, the receipt, use and onward supply of the Services by the Client and its permitted sub-licensees shall not, as far as the Provider is aware, infringe the rights, including any Intellectual Property Rights, of any third party; and
  4. it has obtained a waiver of any moral or similar rights in the Services to which any individual is or may be in the future entitled.

12.3 Each Party shall promptly notify the other party of any claim or allegation that the Services infringes a third party’s Intellectual Property Rights that arises out of, or in connection with the Services. The Provider shall have conduct of any such claim.

13. LIMITATION ON LIABILITY - THE CLIENT'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.


13.1 The limits and exclusions in this clause reflect the insurance cover the Provider has been able to arrange as set out in clause 14.

13.2 References to liability in this clause 13 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

13.3 Neither party may benefit from the limitations and exclusions set out in this clause 13 in respect of any liability arising from its deliberate default.

13.4 Nothing in this this clause 13 shall limit the Client's payment obligations under the Contract.

13.5 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
  1. death or personal injury caused by negligence;
  2. fraud or fraudulent misrepresentation; or
  3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

13.6 Subject to clause 13.3 (no limitations in respect of deliberate default) and clause 13.5 (liabilities which cannot legally be limited), the Provider's total liability to the Client:
  1. for damage to property caused by the negligence of its employees and agents in connection with the Contract shall not exceed the Charges for any one event or series of connected events;
  2. for loss arising from the Provider's failure to comply with its data processing obligations under clause 11 (Data protection) shall not exceed the Charges; and
  3. for all other loss or damage which does not fall within subclause (a) or (b) shall not exceed the Charges.

13.7 Subject to clause 13.3 (No limitations in respect of deliberate default), clause 13.4 (No limitation on the Client's payment obligations) and clause 13.5 (Liabilities which cannot legally be limited), this clause 13.7 specifies the types of losses that are excluded:

  1. loss of profits;
  2. loss of sales or business;
  3. loss of agreements or contracts;
  4. loss of anticipated savings;
  5. loss of use or corruption of software, data or information;
  6. loss of or damage to goodwill; andindirect or consequential loss.

13.8 The Provider has given commitments as to compliance of the Services with relevant specifications in clause 3 (Provider obligations). In view of these commitments, the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

13.9 Unless the Client notifies the Provider that it intends to make a claim in respect of an event within the notice period, the Provider shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire [3] months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

14. INSURANCE


14.1 The Provider has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £10,000,000 (ten million GBP) per claim in respect of employer’s liability, public liability, professional indemnity and product liability insurance covering the supply of the Services.

14.2 The Client is responsible for making its own arrangements for the insurance of any loss in excess of the Provider’s insurance cover.

15. COMMUNICATIONS


15.1. Any notice or other communication given to a party under or in connection with the Contract, unless otherwise specified, shall be in writing, in the English language and shall be:

  1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
  2. sent by email to the address specified in the Order Confirmation.

15.2. Any notice or communication shall be deemed to have been received:
  1. if delivered by hand, at the time the notice is left at the proper address;
  2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
  3. 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.

15.3. This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

16. GOVERNING LAW, LANGUAGE AND JURISDICTION


16.1. The language of the Contract and the ruling language is English. 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 and Wales.

16.2. In the performance of obligations under the Contract, the Provider and its agents, sub-contractors and employees shall comply with all applicable laws, rules, regulations and orders of the country in which they are providing the Services.

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

17. ASSIGNMENT AND OTHER DEALINGS


17.1. The Contract is personal to the Client and the Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.

17.2. The Provider may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under the Contract.

18. SEVERANCE


18.1. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.

18.2. If any provision or part-provision of the Contract is deemed deleted under clause 18.1 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.

19. WAIVER


19.1. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

19.2. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

20. RIGHTS AND REMEDIES


The rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.

21. NO JOINT VENTURE


21.1. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

21.2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

22. THIRD PARTY RIGHTS


22.1. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

22.2. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

23. VARIATION


Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

24. ENTIRE AGREEMENT


24.1. The Contract is the entire agreement between the parties in relation to the subject matter of the Contract, and supersedes all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

24.2. 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 or negligent misrepresentation based on any statement in the Contract.


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