TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES
Health and Care Videos
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 18 (LIMITATION OF LIABILITY).
The following definitions and rules of interpretation apply in these Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 16 (Charges and payment).
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 21.5.
Content: Videos, library of videos, library platforms, any multi-media data type, including but not limited to film or video footage, photographic image, visual representation generated optically, electronically, digitally or by any other means or in any media or other material, together with any accompanying material.
Contract: the contract between the Supplier and the Customer for the supply 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.
Customer: the person or firm who purchases Services from the Supplier.
Customer Default: has the meaning set out in clause 4.2.
Customer Background IPRs: all Intellectual Property Rights in the Customer Materials.
Customer Materials: all materials, equipment and tools, videos, scripts, drawings, specifications and data supplied by the Customer to the Supplier.
Data Protection Legislation: all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including without limitation (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, (for so long as and to the extent that the law of the European Union has legal effect in the UK) (ii) the General Data Protection Regulation ((EU) 2016/679) and (iii) any other directly applicable European Union regulation relating to privacy.
End Users: any person authorised on behalf of the Customer to access the Service.
Licence: has the meaning set out in Clause 8 and Clause 13.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and 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), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
New Content: New Content which is to be produced (where applicable) for the Customer in accordance with the Service Agreement.
Order: the Customer’s order for Services as set out in the Customer’s Service Agreement and/ or the Customer’s written acceptance of a quotation by the Supplier.
Platform: the medium through which the Content is made available to the End Users.
Services: the services, including the Content, supplied by the Supplier to the Customer as set out in the Specification.
Specification: the description or specification of the Services as set out on the Supplier’s Website or as provided by the Supplier to the Customer.
Supplier: Health and Care Innovations LLP registered in England and Wales with company number OC407372 trading as Health and Care Videos.
Supplier Materials: has the meaning set out in clause 4.1(i).
Term: The period of time for which the Services will be provided as specified in the Service Agreement.
Use: the way in which the Content is deployed to the End User, such deployment to include copying, hosting, electronically storing, caching, displaying, communicating, transmitting, making available and distributing the Content to End Users.
Video Library: a suite of videos providing the Content as described (where applicable) in the Service Agreement.
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(b) 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.
(c) A reference to writing or written includes fax and email.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Customer issues acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 6 months from its date of issue.
3. Supply of Services
3.1 The Supplier shall supply the Services to the Customer in accordance with the Specification, the Service Agreement and this Agreement, in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Service Agreement, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4. Customer’s obligations
4.1 The Customer shall:
(a) Comply with all warranties and obligations as provided for under this Agreement;
(b) ensure that the terms of the Order are complete and accurate;
(c) co-operate with the Supplier in all matters relating to the Services;
(d) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier;
(e) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(f) prepare the Customer’s premises for the supply of the Services;
(g) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(h) comply with all applicable laws;
(i) keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and
(j) comply with any additional obligations as set out in the Service Agreement.
4.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5. New Content Rights
5.1 These Clauses 5 to 10 apply where the Customer orders New Content as detailed in the Service Agreement.
5.2 The Supplier will expressly state within the Service Agreement whether New Content will be granted to the Customer by way of an Assignment or a Licence.
5.3 In default of any express agreement the Supplier will provide the New Content to the Customer by way of Licence.
6. New Content Customer Background IPRs
6.1 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Background IPRs for the purpose of providing the Services to the Customer in accordance with the Contract and for the purposes of the Supplier using the New Content for future use as Content.
7. New Content Assignment
7.1 If the Service Agreement expressly states that the New Content is to be granted to the Customer by way of Assignment, then this Clause 6 shall apply.
7.2 Upon payment of all fees and charges the Supplier grants and assigns to the Customer absolutely:-
i. The entire copyright throughout the world in all media whether now known or hereafter developed for the full period of copyright and all renewals, revivals, reversions and extensions thereof (and thereafter, in so far as it is able, in perpetuity) including so called rental and lending rights and, to the extent relevant, by way of present assignment of future copyright; and
ii. all other rights whatsoever including all consents under Part II of the Copyright, Designs and Patents Act 1988 or any statutory modification or re-enactment thereof for the time being in force (CDPA) in the Products, and the Customer hereby agrees to procure the giving of similar consents from all persons engaged or employed by the Supplier and whose performances or intellectual property rights are incorporated in the New Content, to enable the Supplier to make the fullest use of the New Content without restriction or payment of further
8. New Content Licence
8.1 Where the Customer has ordered New Content and the Supplier expressly grants a Licence to use the New Content as is detailed in the Service Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable, royalty-free licence to Use the New Content provided for in the Service Agreement in accordance with this agreement for the purpose of providing the Service to End Users including, without limitation, the non-exclusive right to copy, host, electronically store, cache, display, communicate, transmit, make available and distribute the New Content to End Users.
8.2 The Supplier and the Customer agree that:-
(a) All Intellectual Property Rights in the Materials and the New Content are the property of the Supplier;
(b) Nothing in this agreement will confer on the Customer any right of ownership in the Materials and the New Content.
8.3 The Supplier shall be entitled to digitise, encode, aggregate, compress, index, technically manipulate and otherwise change or modify the New Content solely for the purposes of making the New Content available on the Platform in accordance with this agreement, to the extent technically necessary to exercise the rights granted under this Clause 8.
9. New Content Delivery
9.1 This clause applies where the Supplier agrees to provide the Customer with New Content under the Service Agreement.
9.2 The Parties agree to the Services as stated in the Service Agreement.
9.3 The Parties may agree the Services from time by agreement in writing.
9.4 The Parties agree to the Production Schedule as provided for in the Service Agreement.
9.5 The Parties may agree to a variation of the Production Schedule in writing.
9.6 Where appropriate/necessary/agreed to allow the Supplier to produce the New Content the Customer agrees that it shall;
(a) Provide the Supplier with reasonable access to its premises at no expense to the Supplier inclusive of the cost of space, heat, light and power;
(b) Inform all employees, agents and guests at its premises of the proposed filming and obtain relevant and sufficient release forms fully signed by all such persons;
(c) Where necessary and agreed give the Supplier access to the Customer’s personnel and instruct such personnel to assist and support the Supplier wherever possible, to comply with the Suppliers reasonable requests in making the New Content, and in particular to provide such information as the Supplier may request; and
(d) Provide access to digital information, company graphics and website for use in the New Content.
9.7 Where appropriate the New Content shall be delivered to the Customer in the form of a MP4, or similar, file to keep and use forever without limitation.
9.8 The customer will respond to all requests from the Supplier in the course of production of New Content within a reasonable time scale, and no later than three months from the request. This will include for example any sign offs to videos, providing edits to videos etc. Failure to comply with this clause may at the discretion of the Supplier;
(a) Be a material breach of this contract; or
(b) Render all invoices due under this contract with immediate effect.
10. New Content Warranties
10.1 The Customer hereby warrants, represents and undertakes to the Supplier that;
(a) The Customer is fully entitled to enter into and to perform this agreement;
(b) The New Content will be wholly original to the Supplier and will not infringe the copyright or any other rights of any third party, including rights to privacy;
(c) The New Content will not (including by way of inflection or gesture or otherwise) contain any defamatory matter or breach any contract or duty of confidence nor bring the Supplier into disrepute or subject it to criminal or civil proceedings, and does not incorporate any matter which constitutes contempt of court or breach of any provision of law;
(d) The Customer shall not make any commercial exploitation of any to the New Content except as permitted under this agreement;
(e) The Customer shall indemnify the Supplier and keep the Supplier fully and effectively indemnified against all actions, costs, demands, losses, claims and expenses of whatsoever kind or arising from any actual or threatened breach or non-performance of any of the warranties, representations, undertakings or obligations on the Customer’s part contained in this agreement;
(f) The Customer shall promptly notify the Supplier of a claim within 7 days of receiving notice of it.
Where the Customer requests the Supplier display the Customers logo on the New Content, the Customer grants the Supplier a non-exclusive, non transferable, royalty-free licence to use the logo whether registered as a trademark or not for the purpose of providing the Service to the Customer (and others where relevant) including, without limitation, the non exclusive right to copy, host, electronically store, cache, display, communicate, transmit, make available and distribute the logo as part of the New Content.
11. Content Rights
11.1 These Clauses 11 to 12 apply where the Customer orders Content as detailed in the Service Agreement.
The Supplier will provide the Content to the Customer by way of Licence.
12. Content Licence
12.1 Where the Customer has ordered Content the Supplier expressly grants a Licence to the Customer to use the Content. Upon payment of all fees and charges; the Supplier will grant to the Customer a non-exclusive, non-transferable, royalty-free licence to Use the Content during the term provided for in the Service Agreement in accordance with this agreement for the purpose of providing the Service to End Users including, without limitation, the non-exclusive right to copy, host, electronically store, cache, display, communicate, transmit, make available and distribute the Content to End Users.
12.2 The Supplier and the Customer agree that:-
(a) All Intellectual Property Rights in the Materials and the Content are the property of the Supplier;
(b) Nothing in this agreement will confer on the Customer any right of ownership in the Materials and the Content.
The Supplier shall be entitled to digitise, encode, aggregate, compress, index, technically manipulate and otherwise change or modify the Content solely for the purposes of making the Content available on the Platform in accordance with this agreement, to the extent technically necessary to exercise the rights granted under this Clause 2.
13. Content Delivery
13.1 Where the Supplier agrees to provide the Customer with Content under the Service Agreement.
13.2 The parties agree to the Services as stated in the Service Agreement.
13.3 The Parties may agree the Services from time to time by agreement in writing.
13.4 The Parties may agree the Content Specification from time to time by agreement in writing.
13.5 The Parties agree to the Launch Schedule as provided for in the Service Agreement.
13.6 The Parties may agree to a variation of the Launch Schedule in writing.
13.7 The Supplier shall commence delivery of the Content no later than the Launch Date as provided for in the Service Agreement.
13.8 The Supplier shall, by no later than the Launch Date and solely for the purpose of delivering, identifying and managing the Content to and on the Platform provide the Customer with the rights to and means of;-
(a) Accessing the Platform in accordance with the Service Agreement;
(b) Using the Platform in accordance with the Service Agreement;
(c) Throughout the Term, maintain suitable facilities or the pick-up and transmission of the Content.
Upon serving 24 hours advance notice to the Customer, where reasonably practicable, the Supplier may, from time to time, in its reasonable discretion either temporarily suspend or permanently withdraw delivery of or access to any Content by the Customer.
13.9 The Customer shall, as soon as reasonably practicable, following a request from the Supplier, and in any event within 24 hours of such request, remove any specified Content from the Platform, if the Supplier considers that, in its good faith judgment:
i. The Customers distribution of the Content might infringe upon the rights (including but not limited to the Intellectual Property Rights) of any third party or in the event of any allegation by a third party of infringement of such rights or if the Supplier has reason to believe that an allegation of infringement may be made by a third party as a result of such distribution;
ii. It no longer has, or it considers that it may no longer have all requisite rights to permit the Customer distribution of the Content in accordance with this agreement;
iii. The Supplier’s distribution of the Content, in whole or in part, might violate any law, regulation, court order or other ruling of any governmental, judiciary or regulatory body;
iv. Medical advice provided for within the Content is changed, no longer relevant or generally not advised (save that nothing within this clause shall prejudice the limitation of liability set out in clause 18);
v. There is any other bona fide legal or commercial reason.
13.10 In the event that the Supplier either suspends of withdraws delivery of, or access to, any Content, the parties shall negotiate, in good faith, the provision by the Supplier of replacement Content.
13.11 The Customer may, subject to obtaining the prior consent of the Supplier, where it is practicable to obtain such consent, cease making the Content available to End Users (Takedown), either in whole or in part where either party becomes aware that the Content:
(a) Violates the Intellectual Property Rights or any other rights of any third party;
(b) Violates any applicable law, regulation, code of practice or is subject to an injunction or other action by a third party;
(c) Violates the Customer’s policies; or
(d) The placement of the Content is impacting the integrity or technical performance of the Service Technology.
13.12 Where it is not practicable for the Customer to obtain consent from the Supplier before a Takedown under clause 13.12, such action can be taken unilaterally by the Customer provided that such decision can be reasonably justified under the provisions of this clause 13.13.
13.13 Where the Customer conducts a Takedown, it shall immediately notify the Supplier, in writing, of the Takedown and the reasons behind it.
14.1 The Customer shall not be entitled to edit, add to, delete from, alter, modify or, in any other way, change the Content (or any part of it) as delivered to it by the Supplier nor shall the Customer overlay or frame any content over the Content.
Without prejudice to the generality of this agreement the Customer shall not alter, remove or obscure any trade mark, copyright or other proprietary rights notice incorporated in the Content.
15. Platform Security
The Customer shall, at all times, maintain in force a range of security measures to ensure the Content is protected using robust, state-of-the-art measures to prevent the unauthorised access to, and transmission, copying, modification and/or distribution of, the Content.
16. Charges and payment
16.1 The Charges for the Services are as set out in the Service Agreement.
16.2 Where the Customer is provided with a Video Library under the Service Agreement the Supplier shall be entitled to charge an additional sum as detailed in the Service Agreement for each 100 additional videos (and multiples thereof) made available to the Customer through the Video Library since the date of this Agreement.
16.3 The Supplier reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index (or such index as is reasonably comparable) in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index or such standards as are reasonably comparable.
16.4 The Supplier shall invoice the Customer and the Customer shall pay each invoice submitted by the Supplier:
(a) within 21 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
(c) time for payment shall be of the essence of the Contract.
16.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
16.6 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 19, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 16.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
17. Data protection and data processing
17.1 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. In this clause 17, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means any Data Protection Legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation.
17.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
17.3 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 Supplier for the duration and purposes of the Contract.
17.4 Without prejudice to the generality of clause 17.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
(a) process that Personal Data only on the written instructions of the Customer unless the Supplier is required by Applicable Laws to otherwise process that Personal Data. Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier 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:
i. the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
ii. the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
iii. the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
iv. the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(e) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a Personal Data breach;
(g) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 17.
17.5 The Customer does not consent to the Supplier appointing any third party processor of Personal Data under the Contract unless express written authorisation is provided by the Supplier to the Customer in which event the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 17.
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).
18. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
18.1 The Supplier has obtained public and products liability insurance cover in respect of its own legal liability for individual claims not exceeding £5,000,000 per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
18.2 The Supplier will provide the Content and Services with due care, skill and diligence. All the content, material and Services available for purchase to the Customer has been prepared by clinicians and practitioners and the Supplier aims to ensure that the information is consistent with current knowledge, understanding and practice amongst clinicians and practitioners and within guidelines for legislation and practices around social inclusion. The Supplier does not warrant or guarantee the applicability, accuracy or fitness of the Content and Services for any particular purpose.
18.3 The Supplier does not warrant or guarantee and will not accept liability for the applicability, accuracy or fitness of the Content and Services for any particular purpose.
18.4 The Suppliers does not guarantee that the Content and Services will be free from errors or omissions. The use of or reliance on any Content and Services is entirely at the Customers own risk and it remains entirely the responsibility of the Customer to check that such Content and Service continues to be consistent with the Customers own appropriate policies, is safe, suitable and fit for the purpose and audience that the Customer intends to use it with.
18.5 To the fullest extent permitted by law the Supplier and third parties that are from time to time connected to the Supplier expressly exclude:-
(a) All conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity;
(b) Any liability for any direct, indirect or consequential loss or damage (including any loss or damage of any kind, however arising and whether caused by tort (including negligence), breach of contract or otherwise even if foreseeable) incurred by the Customer in connection with the Supplier’s Content and Services, any websites linked to it and any Content posted on it.
18.6 Notwithstanding any other term in this agreement the Supplier shall not be liable for any damages, costs or loses arising as a result of modifications made to Content or Services by you in the context in which the Content is used by the Customer.
18.7 The Customer agrees to indemnify, defend and hold the Supplier and its affiliates harmless from and against any and all claims, liability, losses, damages, costs and expenses incurred by the Supplier as a result of or in connection with any breach or alleged breach by the Customer or anyone acting on behalf of the Customer of any terms of this agreement.
18.8 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
fraud or fraudulent misrepresentation; and
(b) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
18.9 The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
This clause 18 shall survive termination of the Contract.
19.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 3 months’ written notice.
19.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 28days of that party being notified in writing to do so;
(b) 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 or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause (b) to clause (d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
20. Consequences of termination
20.1 On termination of the Contract:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) any licence granted to the Customer by the Supplier under this Agreement shall automatically terminate.
(c) the Customer shall return any and all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
(d) Both parties must immediately return or deliver to the other all documents and other material, including disks and tapes in its possession or under its control which contain Confidential Information of the other or, at the direction of the other party, destroy such documents or other material and certify that the destruction has taken place.
(e) The Customer shall, at the election of the Supplier, delete or return to the Supplier all Content and cease distribution of the Content.
(f) If the Customer fails to delete the Content and fails to cease distribution of the Content the Supplier will apply to the Court for an Injunction to force the Supplier to cease distribution. The Customer hereby
(g) agrees to indemnify the Supplier for all costs of the said injunctive proceedings and will make payment within 14 days of receiving the relevant associated invoices.
20.2 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.
Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
21.1 Force majeure. 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 events, circumstances or causes beyond its reasonable control.
21.2 Assignment and other dealings.
(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer 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 without the prior written consent of the Supplier.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause (b).
(b) Each party may disclose the other party’s confidential information:
i. to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 21.3; and
ii. 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 perform its obligations under the Contract.
21.4 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
21.5 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).
21.6 Waiver. 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. 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.
21.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be 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 o] [sent by email to the address specified in the Service Agreement.
(b) Any notice or communication shall be deemed to have been received:
i. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
ii. 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 at the time recorded by the delivery service; and
iii. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 21.7, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
21.9 Third party rights.
Unless it expressly states otherwise, 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.
21.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
21.11 Jurisdiction. 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.