Terms and Conditions - Standby

Execution

This Agreement consists of this Creative Treatment and our latest version of the Terms and Conditions as at the date of the first Party to initially sign this Creative Treatment (available at http://www.standbyproductions.co.uk/roll – our online Let’s Roll form). Each of we and you confirm that it has read this Agreement and agree to be bound by its terms. Unless the context otherwise requires, definitions used in the Terms and Conditions have the same meaning in this Creative Treatment. This Agreement shall be legally formed and we and you shall be legally bound when both we and you have signed this Creative Treatment.

TERMS AND CONDITIONS (these “Terms and Conditions”)

Definitions
1. In this Agreement, the following terms shall have the following meanings unless the context otherwise requires:
  “Agreement”: these Terms and Conditions together with the Creative Treatment and any document referred to in these Terms and Conditions or the Creative Treatment;
  “Buy-Out Fee”: the fees payable by you to us for acquiring any Intellectual Property Rights in the Delivery Materials, as set out in the Creative Treatment;
  “Breach of Duty”: the breach of any: (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract; or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty);
  “Business Day”: any day other than: (i) a Saturday; (ii) a Sunday; or (iii) a day when the clearing banks in the City of London are not physically open for business;
  “Confidential Information”: any information in any form or medium obtained by or on behalf of either Party from or on behalf of the other Party in relation to this Agreement which is expressly marked as confidential or which a reasonable person would consider to be confidential, whether disclosed or obtained before, on or after the date of this Agreement, together with any reproductions of such information or any part of it;
  “Creative Treatment”: the written document we provide to you containing specific information relating to particular Delivery Materials and/or Services supplied or to be arranged to be supplied by us to you, and which sets out a detailed description of the proposed content of the Video;
  “Delivery Materials”: the Video together with all related and agreed preparatory documents, scripts, artwork and a list of all clearances for third-party material with supporting documents including all music rights clearances;
  “Event of Force Majeure”: has the meaning given to it in Clause 14;
  “Fees”: the fees payable by you to us for our provision to you of the Services, as set out in the Creative Treatment;
  “Filming Day”: the date on which we will commence filming of the Video, as set out in the Creative Treatment;
  “Intellectual Property Rights”: copyright and related rights, trade marks and service marks, trade names and domain names, rights under licences, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, patents, rights to inventions, rights in designs, rights in computer software, database 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 (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
  “Liability”: liability in or for breach of contract, Breach of Duty, torts (including negligence and intentional torts), deliberate breach (including deliberate personal repudiatory breach), misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement (and, for the purposes of this definition, all references to “this Agreement” shall be deemed to include any collateral contract);
  “Party”: us or you, and “Parties” means both of us and you;
  “Permitted Use”: the use for which you are permitted to use the Delivery Materials, as stipulated in the Creative Treatment;
  “Production Day”: any eight-hour period on a Business Day on which we perform the Services;
  “Production Schedule”: the agreed dates, times and locations for the preparation, production and post-production of the Video during, as set out in the Creative Treatment;
  “Rates”: our time and material rates from time to time;
  “Services”: the video production services we are to provide under this Agreement;
  “Video”: the promotional video(s) we are to produce for you in accordance with this Agreement through the provision by us to you of the Services; and
  “Video Delivery Date”: the date by which we will deliver the Video to Adstream in final form, as stated in the Production Schedule;
2. references to “Clauses” are to clauses of these Terms and Conditions;
3. the headings are inserted for convenience only and shall not affect the construction or interpretation of this Agreement;
4. a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
5. a reference to a Party includes its personal representatives, successors or permitted assigns;
6. words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral and references to persons shall include an individual, company, corporation, firm, partnership, trust, association, government or local authority department or other authority or body (whether corporate or unincorporated);
7. a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
8. any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression, shall be construed as illustrative, and shall be deemed to be followed by the words “without limitation” unless the context requires otherwise; and
9. a reference to “writing” or “written” includes in electronic form and similar means of communication (except under Clause 15).
Agreement
1. The Creative Treatment, when signed or otherwise accepted by you, shall be deemed to be an offer by you to purchase the Services from us, subject to the terms of this Agreement. The Creative Treatment shall only be deemed to be accepted by us when we issue written acceptance of the Creative Treatment, at which point and on which date this Agreement shall come into existence, but the requirements for us to perform any of our obligations under this Agreement shall be conditional upon our receipt from you of any advance payment of Fees as required under this Agreement.
2. This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
3. Each Party acknowledges that in entering into this Agreement 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 this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation, or negligent misstatement, based on any statement in this Agreement.
4. In the event of a conflict between these Terms and Conditions and the Creative Treatment, then the Creative Treatment shall prevail.
Engagement
1. In consideration of payment to us of the Fees by you, you engage us, and we agree, to produce the Video in accordance with the Creative Treatment.
2. We warrant that:
  1. we shall use our reasonable skill and care in providing the Services;
  2. our employees, agents and subcontractors have the necessary skill to provide any Services;
  3. we shall ensure that our employees, agents and subcontractors co-operate with, and make themselves available at all reasonable times for, discussion and meetings with, you and your employees, agents or subcontractors; and
  4. we shall comply with all applicable laws, statutes, regulations and bye-laws in relation to the exercise of our rights and performance of our obligations under this Agreement.
3. We are not responsible for any people, deliverables or services that we are not expressly stipulated to provide in this Agreement. You are responsible for any people, deliverables and services that you need to obtain from someone other than us. Except for any matter in relation to which we specifically agree in writing to advise or do, we shall not be responsible, or have any Liability (subject to Clause 12.2), for advising on, or failing to advise on, or doing, or failing to do, anything else.
4. Subject to us performing the Services within any timeframe agreed as being necessary for the performance of the Services, we may select our own working times and location provided that the nature of particular services does not require those particular services to be undertaken during particular working times or at a particular location (in which situation you shall be entitled to request that we perform the Services at such working times and location as are reasonable in the circumstances).
5. We shall use our reasonable endeavours to perform our obligations under this Agreement within any timescales set out in this Agreement. However, subject to Clause 12.2, we shall not have any Liability for any delays or failures to accurately perform our obligations:
  1. if we have used those endeavours; or
  2. if caused by any failure or delay on your part or on the part of your employees, agents or subcontractors or by any breach by you of this Agreement or any other agreement; or
  3. an Event of Force Majeure.
    If there is any slippage in time, we shall use our reasonable endeavours to rearrange any Services to a mutually convenient time.
6. We have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and we shall notify you in any such event.
7. If we are delayed or hindered in providing any Services as a result of any breach, delay or failure by you to perform any of your obligations under this Agreement or of any other agreement between us and you, then we may charge you at our time and Rates from time to time for:
  1. any time reasonably incurred as a result of the hindrance or breach (including any wasted time for which we had anticipated that our personnel would provide Services under this Agreement but become unable to provide the Services at that time as a result of your act or omission); and
  2. any time that we were going to spend in providing the Services, in addition to the time we actually do spend in providing the Services.
8. In the event that you wish to postpone or cancel the Filming Day, and you provide us notice less than 48 hours prior to the Filming Day, you must pay the Fees in full in respect of that Filming Day as if it had taken place, and arrange with us an alternative date for the Filming Day, chargeable at the Rates (in addition to the Fees already paid).
9. In the event that you, or Your Representative, do not comply with the Production Schedule in respect of the provision of relevant feedback and information to us in respect of the Video in a timely manner, you acknowledge that:
  1. the Production Schedule shall be delayed and postponed;
  2. we will postpone the time we have set aside to edit the Video whilst we await the information and feedback from you;
  3. you will pay us in accordance with Clause 7 in the event of such delay, including for the editing time that we postpone and an edit suite booking fee of £250 plus VAT for our re-booking of the editing suite to allow for future editing of the Video once you have provided the relevant information and feedback to us;
  4. we will re-book the editing suite once you have provided the relevant feedback and information to us, and not before; and
  5. any impact of the delay on your internal deadlines shall be your responsibility, and, in accordance with Clause 5, we shall have no Liability (subject to Clause 11.2) in the event of any such delays or postponements of the Product Schedule in such circumstances.
  6. The number of days editing any amends, based on your feedback is clearly stated in the Offline and Online editing sections of the quote. We will adhere to this number of days.
  7. any amends/feedback that we deem to be beyond the number of quoted ‘amend days’ will be charged at £45.00 per hour.
10. Except as expressly stipulated in this Agreement:
  1. we shall not be responsible for providing or achieving any particular results or outcomes or within a particular time; and
  2. we exclude all conditions, warranties, terms and obligations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the Delivery Materials and the Services.
11. You agree that you shall:
  1. ensure that the terms of the Creative Treatment, and any specification or instructions you provide to us for the Services and/or for the Delivery Materials, are complete and accurate;
  2. provide proper, adequate, safe, comfortable and suitable environmental and operating conditions if we undertake any work at your premises;
  3. inform us in writing a reasonable time before the commencement of any Services of any regulations relevant to us when working at any premises under your control;
  4. be present and available at your premises at the required times to enable us to perform our obligations at the times we reasonably require under this Agreement;
  5. ensure that your employees, agents and subcontractors fully co-operate with, and make themselves available at all reasonable times for discussion and meetings with, us and our employees, agents and subcontractors and to enable us to promptly perform our obligations under this Agreement;
  6. promptly comply with all of our reasonable requests in connection with this Agreement;
  7. have all rights, permissions and consents to enter into, and perform your obligations under, this Agreement; and
  8. comply with all applicable laws, statutes, regulations and bye-laws in relation to the exercise of your rights and performance of your obligations under this Agreement.
12. You must ensure that the Services and the Delivery Materials are sufficient and suitable for your purposes and meet your individual requirements.
13. We shall not be responsible or, subject to Clause 12.2, have any Liability for any failure to provide the Services to the extent caused by your failure to comply with this Agreement.
Creative control
1. The Parties shall consult with each other in good faith in respect of the editorial content and artistic direction of the Video.
2. You shall appoint a representative (“Your Representative”) who shall have the right, on your behalf, to accept as satisfactory the story outlines, scripts, voices, storyboards, design and music of the Video. You will ensure that Your Representative is available to provide hands-on assistance to us during filming and to agree any required changes in the Video and the Production Schedule. We shall not have any Liability, subject to Clause 12.2, for any failure by you or Your Representative to properly supervise the Services to ensure the Video meets your expectations.
3. If you are arranging for participants to appear in the Video, Your Representative is responsible for ensuring their availability in accordance with the Production Schedule.
4. You will provide to us your logo and brand guidelines on request, and in any event in good time for us to make appropriate pre-production plans.
5. If you decline to accept any of the Delivery Materials, in accordance with the Creative Treatment, we will then have 21 days in which to make all necessary changes to them, in consultation with you, you having given written reasons for non-acceptance. We will then submit to you the revised Delivery Materials and the provisions of this Clause 4.5 will apply again save that any further request for amendment by you after the second review shall be subject to charge by us to cover reasonable costs necessarily incurred as a result of the second non-acceptance, such costs to be paid within 30 days of your receipt of a valid invoice for them.
6. Following the Video Delivery Date, we shall store the Video for two years. We may store the Video for longer periods on your request, subject to an additional charge.
7. For the avoidance of doubt, time shall not be of the essence in respect of our obligations to meet the Video Delivery Date and any timeframes in the Production Schedule.
8. The Production Schedule shall set out the number of Production Days we consider to be required to complete the Services, and on which the Fees shall be based. If, at any time during our performance of the Services, we reasonably believe that the number of Production Days in the Production Schedule will be exceeded, we will inform you. If we exceed the number of Production Days set out in the Productions Schedule, we will charge you at the Rates for the additional time we spend.
9. If the Services are delayed such that they are running behind the Production Schedule, we will re-estimate the timeframes in the Production Schedule to you.
Filming permissions
1. It is important that we have the necessary permissions to film at each relevant location. It is also important that each participant is happy to appear in the final production. Furthermore, private land owners are able to refuse access to film crews and can demand fees for use of their property. If we pay any such fees, we will charge them back to you in accordance with the expenses procedure set out in Clause 8 .
2. During the pre-production process, we will agree with you any locations at which we are to film the Video. We are happy to advise on, but will not actively seek permission, where we intend to film:
  1. on property in use by you;
  2. your members of staff or associates; and/or
  3. third parties connected to the Video (e.g. your clients) or their property.
3. Please note that it is your responsibility to obtain the consent and release from all participants who you intend will appear in the Video. We may be able to provide to you draft release forms for any participants, but we do not guarantee the efficacy of such documents. Models will be Standby’s responsibility to gain release forms and agreed licenses.
Health and safety
1. We and you shall work together to ensure safety throughout the filming of the Video. You shall ensure that you report any potential hazards to us immediately.
2. We will undertake a health and safety assessment of the relevant filming location prior to the Filming Day; however, you should inform all those who are to be involved in the filming of the Video, or otherwise present at the filming location, of potential hazards, including:
  1. risk of trip or fall due to cables and equipment;
  2. risk of electric shock due to wires, hot bulbs and use of liquids in close proximity to equipment;
  3. risk of collision and/or obstruction;
  4. risk of burns from hot equipment; and
  5. appropriate emergency exit routes and procedures.
Fees and payment
1. In consideration of obtaining the relevant Services we provide pursuant to this Agreement, you shall pay to us the Fees, based on 50% deposit on submission of our Lets Roll form, 25% on delivery of the first Offline Edit and 25% completion on submission of our That’s a Wrap form.
2. We may charge you for our reasonable expenses incurred in the course of performing our obligations under this Agreement.
3. You must pay the Fees (and expenses) to us at such times and in such instalments as we may direct from time to time. Unless set out otherwise in this Agreement, we may issue invoices to you for the Fees (and expenses) at such intervals as we may, at our absolute discretion, consider appropriate. However, if we are to incur significant expense on your behalf, the Parties may agree (such agreement not to be unreasonably withheld or delayed), on a case-by-case basis, that you shall pay us in advance before we have incurred the expense; you acknowledge that, without your agreement to incur the expense, we reserve the right to stop performing the Services that are dependent on us incurring that expense, and we shall have no Liability, subject to Clause 12.2, for any delay or failure in the performance of the Services as a result.
4. Unless otherwise set out in the Creative Treatment, all sums due under this Agreement are exclusive of VAT or other sales, import or export duties or taxes (if applicable) which shall be payable in addition at the same time as payment of any sums due.
5. No payment shall be considered paid until we have received it in cleared funds in full.
6. Payment must be in the currency in force in England.
7. We reserve the right to increase the Fees in respect of any Services or Delivery Materials not included in the Creative Treatment which we may mutually agree in advance, to provide to you in addition to those Services and Delivery Materials set out in the Creative Treatment.
8. We reserve the right to increase the Fees in respect of any Delivery Materials or Services, by giving notice to you at any time before delivery, to reflect any increase in the cost of the Delivery Materials to us that is due to:
  1. any factor beyond our control (including tax or duty increases, increase in supplier costs, increase in labour, materials or other costs, or changes in any relevant laws);
  2. any request by you to change the delivery date(s), or type or design of Delivery Materials or Services; and/or
  3. any delay caused by your instructions in respect of the Delivery Materials or Services or your failure to give us adequate or accurate information or instructions in respect of the Delivery Materials or Services.
9. You must pay all amounts due under this Agreement in full without any set-off, counterclaim, deduction or withholding except as required by law. We may, without limiting our other rights or remedies, set off any amount owing to us by you against any amount payable by us to you.
10. If you are late in paying any part of any monies due to us under this Agreement and such payment remains outstanding for fourteen days following us providing notice to you of such outstanding payment, we may (without prejudice to any other right or remedy available to us whether under this Agreement or by any statute, regulation or bye-law) do any or all of the following:
  1. charge interest and other costs on the overdue amount due but unpaid at the annual rate of interest set under Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly;
  2. recover our costs and expenses and charges (including legal and debt collection fees and costs) in collecting the late payment; and
  3. suspend performance of this Agreement until payment in full has been made.
Intellectual Property Rights
1. You acknowledge that all Intellectual Property Rights in and to the Delivery Materials, and all Services, belong to us. We grant to you a perpetual, sole, royalty-free licence to use the Intellectual Property Rights in and to the Delivery Materials for the Permitted Use only. For the avoidance of doubt, you must not:
  1. and you must not authorise any third party to, reedit or exhibition the Delivery Materials without our written consent; and/or
  2. distribute the Delivery Materials without our written consent.
2. You recognise that we have the unlimited right to edit, copy, alter, add to, take from, adapt, translate and dub in to one or more foreign languages the Delivery Materials and you hereby irrevocably and unconditionally waive the benefit of your moral rights arising under Parts I and II of the CDPA and performers’ non-property rights arising under Part II of the CDPA and any similar laws of any jurisdiction in favour of us and all our licensees, sub-licensees, assignees and successors in title to the copyright in the Delivery Materials.
3. You agree to do all such acts and execute such documents as we may reasonably require to vest in or confirm to us or our successors in title and licensees the copyright and all other rights assigned or granted or purported to be assigned or granted by you to us under this agreement. We shall reimburse you all reasonable costs incurred by you in so doing.
4. You agree that we may use your name and Intellectual Property Rights to the extent necessary for the purpose of providing the Services, such as by including them on Delivery Materials, referring to them in paperwork and in discussions with third parties in order to indicate the nature of the Video, and including them in our own promotional materials and showreels in accordance with Clause 9.6. You warrant that no such use shall infringe the Intellectual Property Rights of any third party.
5. In the event you would like to acquire the Intellectual Property Rights in the Delivery Materials, then these can be purchased for the payment by you to us of the Buy-out Fee of £500.00 up to the file size of 100 Gigabytes, then £10 per Gigabyte thereafter, as quoted separately.
Warranties
1. You hereby warrant to us that:
  1. you shall either own, or have obtained and paid for licences to use, all materials provided to us by you in connection with the production of the Video; and
  2. unless the Parties expressly agree in writing, you will ensure that the Video and its content is suitable and has been approved for the media through which you intend to distribute it and make it available (including compliance with any advertising guidelines for use of the Video on television).
    (The above is not applicable to this production)
2. You shall indemnify us and keep us fully and effectively indemnified against all actions, costs, demands, losses, claims and expenses of whatsoever kind or nature arising from any actual or threatened breach or non-performance of any of the warranties, representations, undertakings or obligations on your part contained in this Agreement.
Confidentiality
1. Each Party undertakes that it shall not at any time disclose to any person any Confidential Information concerning the other Party, except that each Party may disclose the other Party’s Confidential Information:
  1. to its employees, officers, representatives 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 this Agreement. Each Party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other Party’s Confidential Information comply with this Clause 10; and
  2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
Neither Party shall use the other Party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement. Limitation of Liability
1. This Clause 12 prevails over all of this Agreement and sets forth our entire Liability, and your sole and exclusive remedies, in respect of:
  1. performance, non-performance, purported performance, delay in performance or mis-performance of this Agreement or any services or deliverables in connection with this Agreement; or
  2. otherwise in relation to this Agreement or entering into this Agreement.
2. Neither Party excludes or limits its Liability for:
  1. its fraud; or
  2. death or personal injury caused by its Breach of Duty; or
  3. any breach of the obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; or
  4. any other Liability which cannot be excluded or limited by applicable law.
3. Subject to Clause 12.2, we do not accept and hereby exclude any Liability for Breach of Duty other than any Liability arising pursuant to the terms of this Agreement.
4. Subject to Clause 12.2, we shall not have any Liability in respect of any:
  1. indirect or consequential losses, damages, costs or expenses;
  2. loss of actual or anticipated profits;
  3. loss of contracts;
  4. loss of use of money;
  5. loss of anticipated savings;
  6. loss of revenue;
  7. loss of goodwill;
  8. loss of reputation;
  9. loss of business;
  10. ex gratia payments;
  11. loss of operation time;
  12. loss of opportunity;
  13. loss caused by the diminution in value of any asset; and/or
  14. loss of, damage to, or corruption of, data;
  whether or not such losses were reasonably foreseeable or we or our agents or contractors had been advised of the possibility of such losses being incurred. For the avoidance of doubt, Clauses 12.4.2 to 12.4.14 (inclusive) of this Clause 12.4 apply whether such losses are direct, indirect, consequential or otherwise.
5. 12.2, our total aggregate Liability arising out of or in connection with all claims in aggregate (including warranty claims and losses relating to the breach of warranty) shall be limited to the greater of:
  1. 110% of all amounts paid and total other sums payable, in aggregate, by you to us under this Agreement in the 12 months prior to the date on which the claim first arose; or
  2. £75,000.
6. The limitation of Liability under Clause 12.5 has effect in relation both to any Liability expressly provided for under this Agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of this Agreement.
7. You acknowledge and accept that we only provide the Services to you on the express condition that we will not be responsible for, nor shall we have any Liability (subject to Clause 12.2), directly or indirectly, for any act or omission of, you or your employees, agents or subcontractors, or any third party.
Termination
1. This Agreement shall commence on signature of this Agreement and, unless terminated earlier in accordance with the termination provisions under this Agreement, shall continue in full force and effect until the latest of:
  1. the completion of the provision of the Services; or
  2. the conclusion of payment of all sums due under this Agreement.
2. Without prejudice to any of our rights or remedies, we may terminate this Agreement with immediate effect (or such other notice period as we see fit in our absolute direction) by giving notice to you if you fail to pay any amount due under this Agreement on the due date for payment and such amount remains in default not less than seven days after being notified to make such payment.
3. In the event that you wish to terminate this Agreement, and you provide us notice:
  1. more than seven days before the Filming Day, we will not charge you any further Fees;
  2. between 48 hours and seven days prior to the Filming Day, you must pay 50% of the Fees you have not yet paid; and
  3. less than 48 hours prior to the Filming Day, you must pay any remaining Fees in full.
4. By notice in writing to the other Party, either Party may immediately terminate this Agreement:
  1. if the other Party is in material breach of any of its obligations under this Agreement, and, where such material breach is capable of remedy, the other Party fails to remedy such breach within a period of 20 Business Days of being notified of such breach by the Party; and/or
  2. if the other Party gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or an order is made or a resolution is passed for the winding-up of the other Party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other Party or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other Party’s assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator or which entitle the court to make a winding-up or bankruptcy order, or the other Party takes or suffers any similar or analogous action in consequence of debt in any jurisdiction.
5. Termination of this Agreement shall be without prejudice to any accrued rights or remedies of either Party.
6. Based on the timings in 12.3 – On termination of this Agreement for any reason:
  1. we shall cease to provide the Services and Delivery Materials under this Agreement; and
  2. you shall pay to us all amounts owing to us under this Agreement, whether invoiced or not.
7. Termination of this Agreement shall not affect the coming into force, or continuance in force, of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
Force Majeure
1. Subject to Clause 12.2, neither Party shall have any Liability for any breach, hindrance or delay in performance of its obligations under this Agreement which is caused by an Event of Force Majeure, regardless of whether the circumstances in question could have been foreseen. An “Event of Force Majeure” means any cause outside of the Party’s reasonable control, including act of God, actions or omissions of third parties (including hackers, suppliers, couriers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, national emergencies, terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workmen, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions, loss at sea, earthquake, natural disaster, accident, collapse of building structures, failure of plant machinery or machinery or third party computers or third party hardware or vehicles, failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation.
2. Each of the Parties agrees to inform the other upon becoming aware of an Event of Force Majeure, such information to contain details of the circumstances giving rise to the Event of Force Majeure.
3. The performance of each Party’s obligations shall be suspended during the period that the circumstances persist and such Party shall be granted an extension of time for performance equal to the period of the delay.
4. Each Party shall bear its own costs incurred by the Event of Force Majeure.
5. If the performance of any obligations is delayed under this Clause 14, each Party shall nevertheless accept performance as and when the other shall be able to perform.
6. If the breach, hindrance or delay caused by the Event of Force Majeure, as referred to in Clause 14.1, prevents, hinders or delays either Party’s performance of its obligations for a continuous period of more than six months, the Party not affected by the Event of Force Majeure may terminate this Agreement by giving one month’s written notice to the other Party.
7. If we have contracted to provide identical or similar services to more than one customer and we are prevented from fully meeting our obligations to you due to an Event of Force Majeure, we may decide at our absolute discretion which contracts we will perform and to what extent.
Notices
1. Any notice given to either Party under or in connection with this Agreement shall be in writing, addressed to the relevant Party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that Party may have specified to the other Party in writing, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial or email (provided that a confirmatory copy is given by hand or sent by pre-paid first class post or recorded delivery in accordance with this Clause 11 within one Business Day of transmission)..
2. A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 15.1; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if by e-mail, at the time at which that email has been sent (and the confirmation of sending shall be conclusive evidence of proof that a notice was sent by e-mail).
3. The provisions of this Clause 15 shall not apply to the service of any proceedings or other documents in any legal action.
Assignment
You may not assign, transfer, charge or otherwise encumber, create any trust over, or deal in any manner with, this Agreement or any right, benefit or interest under it, nor transfer, novate or sub-contract any of your obligations under it, without our prior written consent (such consent not to be unreasonably withheld or delayed).
Severance.
1. If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
2. If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
Waiver
1. A waiver of any right or remedy under this Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
2. The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
Third party rights
A person who is not a Party shall not have any rights under or in connection with this Agreement.
No partnership
Nothing in this Agreement shall constitute a partnership or employment or agency relationship between the Parties.
Governing law and jurisdiction
1. This Agreement 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 laws of England.
2. The Parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation.