DISRUPTIVE LIVE SERVICES AGREEMENT
Disruptive Live Terms and Conditions Ref: CTC001
This Agreement is made up of the following:
(a) The Proposal.
(b) The Terms & Conditions.
If there is any conflict or ambiguity between the terms of the documents listed in paragraph 1, a term contained in a document higher in the list will have priority over one contained in a document lower in the list. Any additional terms specified in the Proposal shall take precedence over these terms and conditions.
Terms & Conditions
Agreement: this Agreement between the Client and Disruptive Live for the supply of the Services in accordance with the Proposal and these Terms & 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 Client for the supply of the Services by Disruptive Live, as set out in the Proposal.
Client: the client specified in the Proposal.
Client Representative: any Director of the Client or other person held out by the Client as having the authority to bind the Client.
Disruptive Live: Compare the Cloud Limited, Company No 07657589; Registered Office 97 Leigh Road, Eastleigh, Hampshire, SO50 9DR.
Deliverables: all documents, content and materials developed by Disruptive Live or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation Deliverables and audio content, preparatory material, raw footage and preparatory documents (including drafts and storyboards) and Deliverables set out in the Proposal.
Deliverable IPRs: all Intellectual Property Rights subsisting in Deliverables excluding any Project Materials incorporated in them.
Delivery Date: the date for delivery of Deliverables as specified in the Proposal.
Intellectual Property Rights: copyright and neighbouring and related rights, moral rights, trade and service marks, business and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, 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.
Project: any projects agreed between the parties from time to time under which Disruptive Live is to perform and provide Services and supply Deliverables to the Client, as more fully described in this Agreement and the applicable Proposal
Project Completion Date: the date by which any Project is to be completed, as set out in the applicable Proposal
Project Materials: all materials, content, specifications and data supplied by the Client to Disruptive Live for inclusion in the Services or Deliverables, as more fully described in the applicable Proposal.
Project Start Date: the day on which Disruptive Live is to start provision of the Services, as set out in the applicable Proposal
Project Term: the period during which the Services and Deliverables for each Project will be provided as specified in the applicable Proposal
Proposal: the proposal document provided by Disruptive Live and signed by both parties.
Services: the services, including without limitation any Deliverables, to be provided by Disruptive Live pursuant to the terms of this Agreement, as described in the Proposal;
Terms & Conditions: these terms and conditions set out in clause 1 (Interpretation) to clause 10 (General) (inclusive).
(a) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression will be construed as illustrative and will not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes email.
2. Appointment, Project Scope Of Work & Term
2.1 Disruptive Live will supply the Services and Deliverables to the Client from the Project Start Date in accordance with the terms of this Agreement and the agreed Project Scope Of Work.
2.2 Disruptive Live will not be obliged to perform any work on behalf of the Client until the applicable Proposal has been signed by both parties.
2.3 In the event that either party wishes to make any material amendment to a Project, any such amendment will be subject to the agreement of both parties in writing.
2.4 In the event of any amendment to a Project by the Client, the Charges payable to Disruptive Live in respect of the amended Project will not decrease below the level of Charges that would have been payable had the Project not been amended, except with Disruptive Live’s prior written approval.
2.5 Pending approval of any amendments to a Project, Disruptive Live will (unless otherwise agreed) continue to perform and be paid for the Services and Deliverables as if the relevant amendment had not been requested.
2.6 Each Project will commence on the Project Start Date and shall continue until the Project Completion Date, subject to earlier termination in accordance with the terms of clause 9.
Supply of Services & Agency Warranties
3.1 In supplying the Services, Disruptive Live will:
3.1.1 give the Client full and clear instructions as to the Project Materials it reasonably requires for the purposes of providing the Services and Deliverables as set out in the Proposal;
3.1.2 perform the Services with reasonable care and skill and in accordance with the Client’s reasonable instructions and requests, provided that such instructions to not materially deviate from or add to the Proposal;
3.1.3 use reasonable endeavours to perform and provide the Services in accordance with the terms of the Proposal;
3.1.4 perform the Services in willing co-operation with the Client via the Client Representative and where requested by the Client its other professional advisors, service providers and agencies;
3.1.5 not without the Client’s written consent, order goods nor incur any liability on the Client’s behalf nor pledge its credit nor hold itself out as being entitled to do so other than as is contemplated by the terms of this Agreement
3.1.6 not, without prior approval by the Client and subject always to clause 10.4 below, make any commercial or promotional use of its role in, or association with, the Services or Deliverables;
3.1.7 for the avoidance of doubt, be responsible for the payment of all wages, fees, costs, payments and the benefits and rights of employment or engagement of any nature (including for example paid holiday) due to all personnel engaged or employed by Disruptive Live to render its services in connection with the provision of the Services and Deliverables including all income tax, national insurance and any and all payment in lieu of holiday connected therewith and for the payment of all goods and services acquired by Disruptive Live to perform the Services, and the Client will have no liability in respect of such costs;
3.1.8 subject to the obligations of the Client, comply with all applicable laws, statutes, regulations and codes from time to time in force which relate to the Services; and provided that Disruptive Live will not be liable under this Agreement if, as a result of such compliance, it is in breach of any of its obligations;
3.1.9 take reasonable care of all Project Materials in its possession and make them available for collection by the Client on reasonable notice and request, always provided that Disruptive Live may destroy the Project Materials if the Client fails to collect the Project Materials within a reasonable period after termination of this Agreement; and
3.1.10 if, at any time, it becomes aware that it may not be able to perform the Services or deliver any Deliverables by any date set out in the applicable Project Scope Of Work (or any other deadline agreed by the parties in writing, Disruptive Live will promptly notify the Client and give details of the reasons for delay.
3.2 Disruptive Live hereby warrants, represents and undertakes to the Client that:
3.2.1 Disruptive Live is fully entitled to enter into and to perform this Agreement;
3.2.2 Deliverables (save to the extent that they incorporate material made available to Disruptive Live by the Client, whether consisting of the Project Materials or other third party content) will be wholly original to Disruptive Live and will not infringe the copyright or any other rights of any third party, including rights to privacy;
3.2.3 Deliverables will not (including by way of inflection or gesture or otherwise) contain any defamatory matter or breach any Agreement or duty of confidence nor bring the Client into disrepute or subject it to criminal or civil proceedings, and does not incorporate any matter which constitutes contempt of court or breach any provision of law unless such material has been provided to Disruptive Live by the Client and agreed in advance by the parties;
3.2.4 Save where there is an obligation on the Client to indemnify Disruptive Live, Disruptive Live will indemnify the Client and keep the Client 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 Disruptive Live’s part contained in this Agreement.
4. Client obligations & Warranties
4.1 The Client will:
4.1.1 co-operate with Disruptive Live in all matters relating to the Services
4.1.2 give Disruptive Live full and clear instructions as to its requirements for the Services and Deliverables to be included in a Project Scope Of Work, including full details of the dates by which each stage of the Proposed Services and Deliverables are to start and finish
4.1.3 give Disruptive Live timely and clear briefings and ensure that all information, instructions and approvals are accurate and shall ensure that its other suppliers and agencies act in willing co-operation with Disruptive Live;
4.1.4 obtain relevant and sufficient release forms duly signed by any such person as may appear or be proposed to appear in Project Materials for inclusion in Deliverables;
4.1.5 where necessary and agreed give Disruptive Live access to the Client’s personnel and instruct such personnel to assist and support Disruptive Live wherever possible, to comply with Disruptive Live’s reasonable requests in relation to the creation and development of Deliverables, and in particular to provide such information as Disruptive Live may request;
4.1.6 provide access to Project Materials, content, digital information, graphics, video content, imagery and any other material reasonably requested by Disruptive Live or specified by the Client for use in Deliverables;
4.1.7 ensure that it has all rights and licences in place to enable use by Disruptive Live of all Project Materials;
4.1.8 ensure that all applicable laws, statutes, regulations and codes from time to time in force which relate to the provision of the Services for the Clients products are complied with and in particular that Disruptive Live is not placed in breach of the CAP Code; and
4.1.9 determine all legal guidelines have been adhered to prior to any content being placed live by Disruptive Live.
4.2 The Client hereby warrants, represents and undertakes to Disruptive Live that:
4.2.1 it is fully entitled to enter into and perform this Agreement;
4.2.2 it will either own, or have obtained and paid for licences to use, all Project Materials and third party content provided to Disruptive Live by the Client in connection with the production of Deliverables; and
4.2.3 the Client will indemnify Disruptive Live and keep Disruptive Live 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 (and in particular clause 4.1.8) on the Client’s part contained in this Agreement.
4.3 If Disruptive Live’s performance of its obligations under the terms of this Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, Disruptive Live will:
4.3.1 not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay;
4.3.2 be entitled to payment of the Charges despite any such prevention or delay; and
4.3.3 be entitled to recover any additional costs, charges or losses Disruptive Live sustains or incurs that arise directly or indirectly from such prevention or delay.
5. Creative Control
5.1 For the purposes of this Agreement, any reference to “approval” to be given by the Client shall mean the Client giving approval by one of the following methods:
5.1.1 the Client issuing a purchase order bearing the signature of the Client’s Representative; or
5.1.2 e-mail from the individual business e-mail address of the Client’s Representative; or
5.1.3 the signature of the Client’s Representative on Disruptive Live’s documentation.
5.2 Where the Client is asked to give approval under or in connection with the terms of this Agreement, such approval will not be unreasonably withheld or delayed by the Client or the Client’s Representative.
5.3 Disruptive Live will seek the Client’s prior approval of any draft Deliverables and such approval will be Disruptive Live’s authority to proceed with the use of the relevant Deliverables.
5.4 In the event that the Client does not approve of any matter requiring approval it will notify Disruptive Live of its reasons for disapproval within 5 working days of Disruptive Live’s request. If the Client does not notify Disruptive Live of its disapproval in accordance with this clause 5.4, it shall be deemed approved.
5.5 In the event of any delay or failure of the Client’s Representative giving approvals (or disapprovals) requested under or in connection with the terms of this Agreement, Disruptive Live will not be liable for any resulting delays or adverse impact caused to the delivery of the Project.
5.6 During the Project Term, Disruptive Live will keep the Client fully informed as to the progress and status of all Services and Deliverables in writing, and will promptly inform the Client of any actual or anticipated problems relating to delivery of the Deliverables.
5.7 During the Term, the parties’ respective representatives will arrange and attend meetings to review the status and progress of the Services, Deliverables and the Project, and to seek to resolve any issues that have arisen. Such meetings shall be held at such locations and at such intervals as shall be agreed by the parties.
5.8 In the event of the provision of any Service or Deliverable being provided in a live environment approval shall not be required. The Client shall ensure that it does not do or cause to be done anything in a live environment which may give rise to or cause any damage or loss to Disruptive Live. The Client shall indemnify Disruptive Live for any and all losses, damages or other claims which may arise in relation to the actions of the Client in a live environment.
6. Intellectual property
6.1 Disruptive Live acknowledges that ownership of Project Materials and ownership of all Intellectual Property Rights in any Project Materials (including any modifications or adaptations of such Project Materials produced in the course of providing the Services and Deliverables) shall remain vested in the Client or its licensors. The Client hereby grants to Disruptive Live a non-exclusive licence during the applicable Project Term to use the Project Materials solely for the purposes of providing the Services and Deliverables.
6.2 Subject to Disruptive Live receiving payment of all Charges attributable to the Services and Deliverables, Disruptive Live grants to the Client a licence to use the Deliverables in the Territory and for the purposes and in the media and period of time set out in the Proposal.
6.3 If the Client wishes to use the Deliverables:
6.3.1 either outside of the Territory; and/or
6.3.2 after the period of time set out in the Proposal; and/or
6.3.3 outside of the purposes and/or media set out in the Proposal;
then the Client shall notify Disruptive Live of any intended use of Deliverables and will pay Disruptive Live a fee to be agreed by the parties/as set out in the Proposal.
6.4 The Client grants Disruptive Live a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Project Materials for the term of this Agreement for the purpose of providing the Services and Deliverables to the Client in accordance with its terms.
6.5 Disruptive Live will indemnify the Client in full against any sums awarded by a court against the Client arising out of or in connection with any claim brought against the Client for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of or in connection with the receipt or use of the Services by the Client or due to the nature of the products being advertised.
6.6 The Client will indemnify Disruptive Live in full against any sums awarded by a court against Disruptive Live arising of or in connection with any claim brought against Disruptive Live for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Project Materials by Disruptive Live.
6.7 Notwithstanding any of the above and save as otherwise expressly provided for in the Proposal, Disruptive Live shall:
(a) be able during and after the Term to use any Deliverables which have been broadcast, published, distributed or otherwise made available to the public, and the Client’s name and logo for the purposes of promoting its work and its business including on Disruptive Live’s website, in credentials, pitches and in its showreel. Any other use by Disruptive Live shall be subject to the Client’s prior approval; and
(b) retain all know-how obtained in connection with the Services and Deliverables.
6.8 During the Term, if Disruptive Live is asked to take part in a competitive pitch or other similar process for the Client, then notwithstanding any of the previous provisions of this clause 6, Disruptive Live shall retain ownership of all Intellectual Property Rights in any materials forming part of the pitch process, save to the extent that Disruptive Live is successful in such pitch and the parties agree that such materials will be used in a Project set out in a Scope of Work in accordance with this Agreement.
6.9 For the avoidance of doubt, Disruptive Live shall not be liable under or in connection with this Agreement for any modifications, adaptations or amendments to any Deliverables made by the Client or by a third party on the Client’s behalf, nor in the event that any fault, error, destruction or other degradation in the quality and/or quantity of the Deliverables arises due to the acts or omissions of the Client and/or its Associates.
6.10 The terms of and obligations imposed by this clause 6 shall survive the termination of this Agreement for any reason.
6.11 For the avoidance of doubt all virtual and augmented reality and studio sets remain the property of Disruptive Live
7. Charges and payment
7.1 In consideration for the provision of the Services, the Client will pay Disruptive Live the Charges and any Third Party Costs in accordance with this clause 7.
7.2 All amounts payable by the Client exclude amounts in respect of value added tax (VAT), which the Client will additionally be liable to pay to Disruptive Live at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
7.3 Disruptive Live will submit invoices for the Charges plus VAT if applicable to the Client as specified in the Proposal or for a deposit at the time the agreement is entered and for further Charges on the provision of Services (or part of the Services. A deposit invoice shall be paid within 5 working days and any other invoice shall be paid within 30 days. Each invoice will include all reasonable supporting information required by the Client.
7.4 The Client will pay each invoice due and submitted to it by Disruptive Live, within 30 days of receipt, to a bank account nominated in writing by Disruptive Live.
7.5 If the Client fails to make any payment due to Disruptive Live under the terms of this Agreement by the due date for payment, then, without limiting Disruptive Live’s remedies under clause 9 (Termination):
7.5.1 the Client will 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 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%.
7.5.2 Disruptive Live may suspend the provision of all Services until payment of any overdue invoice has been made in full.
7.6 All amounts due from the Client to Disruptive Live under the terms of this Agreement will be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.7 The terms of remuneration set out in this Agreement do not cover the performance of services which are outside of a Proposal nor do they cover the performance of services outside the Territory. If any such services are required, the terms relating to their provision together with the applicable fees will be agreed in writing by the parties.
7.8 Disruptive Live will invoice the Client in respect of all third party costs incurred by Disruptive Live on behalf of the Client in performing the Services, subject to the Client approving all such costs in advance in writing, including third party production work required to produce the Deliverables including illustrations, film production, artwork, photography, model fees, recordings, the services of performers, animation, print and post production work and other content along with any disbursements and expense items related to the Proposal including but not limited to: messenger services, postage, overseas telephone charges, colour photocopying, photography and prints, disc or tape duplications, creation of audio and video streaming files, travel, accommodation, subsistence and similar items (collectively defined as “Third Party Costs“).
7.9 Disruptive Live will advise the Client promptly of any changes in the estimated cost of items of Deliverables.
7.10 The actual cost to Disruptive Live of Third Party Costs in respect of materials or services purchased overseas for the Deliverables may be more or less than the cost anticipated at the date when Disruptive Live ordered the relevant materials or services (or obtained the Client’s approval for such Third Party Costs) as a result of fluctuations in the rate of currency exchange. If so, Disruptive Live will charge the Client at the rate of currency exchange in operation on the date Disruptive Live pays for the relevant Third Party Costs, which shall be deemed to be the closing mid-point rate in London for that day as subsequently quoted in the next published edition of The Financial Times.
7.11 In the event that any Third Party Costs require payment in advance or sooner than the payment terms set out in clause 7.4, Disruptive Live will notify the Client as soon as reasonably practicable in advance and the Client shall pay such costs within the period set out in the relevant invoice.
7.12 Disruptive Live enters into contracts with third party suppliers in respect of Services and Deliverables in accordance with such suppliers’ standard or individual conditions and contracts (“Third Party Contracts“); and
7.12.1the Client hereby acknowledges that its right to use or otherwise benefit from any Services or Deliverables acquired under such Third Party Contracts shall be as set out in such Third Party Contracts;
7.12.2 any charges or liabilities (to the extent caused by an act or omission of the Client or any third party acting for or on its behalf) for which Disruptive Live is liable under such Third Party Contracts (including cancellation payments) shall be the responsibility of the Client; and
7.12.3 the Client hereby indemnifies and shall keep Disruptive Live indemnified against any Losses caused by any act or omission of the Client which puts Disruptive Live in breach of any such Third Party Contracts.
7.13 Disruptive Live shall provide the Client with a copy of any relevant Third Party Contract if requested to do so and if authorised by the relevant third party.
7.14Disruptive Live shall use reasonable care and skill in the selection and appointment of suppliers. Should the Client request, Disruptive Live will obtain more than one quote for a particular supply and discuss these with the Client before placing an order.
7.15A deposit payment specified in a Proposal shall be payable as specified in the Proposal or clause 7.3 above, and shall not be refundable in the event any Services are cancelled, other than cancellation by Disruptive Live.
7.16 Subject to clause 7.15, in the event the Client wishes to cancel any Proposal it must do so 48 hours in advance of the commencement of any work on the Services. Once the work on the Services has commenced full payment is required. In the event of cancellation 48 hours before Disruptive Live intended to commence the Services no payment other than the deposit will be required. A cancellation less than 48 hours before the intended commencement of Services (but before the commencement of work on the Services) will require a payment of 50% of the Charges (or the deposit if this is greater than 50% of the Charges).
8. Limitation of liability
8.1 The limits and exclusions in this clause reflect the insurance cover Disruptive Live has been able to arrange and the Client is responsible for making its own arrangements for the insurance of any excess loss.
8.2 The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the terms of this Agreement (including any Proposal) including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.3 Neither party may benefit from the limitations and exclusions set out in this clause 8 in respect of any liability arising from its deliberate default.
8.4 Nothing in this Agreement will limit Disruptive Live’s liability under clauses 3.2.4 and 6.5 of this Agreement, or the Client’s liability under clause 4.2.3 or 6.6.
8.5 Nothing in this Agreement limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.6 Subject to clause 8.4 and clause 8.5, Disruptive Live’s total liability to the Client will not exceed the Charges.
8.7 This clause 8.7 sets out specific heads of excluded loss:
8.7.1 Subject to clause 4 and clause 8.5, the types of loss listed in clause 8.7.2 are wholly excluded by the parties.
8.7.2 The following types of loss are wholly excluded:
18.104.22.168 loss of profits;
22.214.171.124 loss of sales or business;
126.96.36.199 loss of agreements or agreements;
188.8.131.52 loss of anticipated savings;
184.108.40.206 loss of use or corruption of software, data or information;
220.127.116.11 loss of or damage to goodwill, publicity or reputation; and
18.104.22.168 indirect or consequential loss.
8.8 Where one party (“Indemnifying Party”) agrees to indemnify and keep the other party (“Indemnified Party”) indemnified under this Agreement, such indemnity is subject to the Indemnified Party complying with the following process in the event that a third party claim arises:
8.8.1 the Indemnified Party must promptly notify the Indemnifying Party in writing of such claim;
8.8.2 the Indemnified Party must not make any admission of liability, settlement or compromise without the prior written consent of the Indemnifying Party;
8.8.3 the Indemnified Party must give the Indemnifying Party express authority to conduct all negotiations and litigation and to defend and/or settle all litigation arising from such claim, provided that the Indemnifying Party regularly consults the Indemnified Party on the conduct and defence of the claim;
8.8.4 the Indemnified Party must provide the Indemnifying Party with all available information and assistance in relation to such claim as the Indemnifying Party may reasonably require at the Indemnifying Party’s cost and expense; and
8.8.5 if within ninety (90) days after the Indemnifying Party’s receipt of notice of any such claim, the Indemnifying Party fails to take action to defend or settle such claim, the Indemnified Party may at the Indemnifying Party’s expense undertake the defence, compromise or settlement of the claim as it sees fit.
9.1 Without affecting any other right or remedy available to it, either party to this Agreement may terminate it with immediate effect by giving written notice to the other party if:
9.1.1 the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
9.1.2 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;
9.1.3 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
9.1.4 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 terms of this Agreement has been placed in jeopardy.
9.2 Disruptive Live may terminate any obligation to provide the Services if any agreement under which it publishes any material required for this Agreement is terminated. Any termination on the basis of this clause shall be notified to the Client within a reasonable period of Disruptive Live becoming aware of the termination and shall not give rise to any claim for damages or repayments other than to the extent of any payment for work/services not yet carried out.
9.3 Without affecting any other right or remedy available to it, Disruptive Live may terminate this Agreement with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the terms of this Agreement on the due date for payment.
9.4 On termination of this Agreement for whatever reason:
9.4.1 the Client will immediately pay to Disruptive Live all of Disruptive Live’s outstanding unpaid invoices and Third Party Costs that Disruptive Live is, up to the date of termination, contractually obliged to pay third parties in relation to the provision of the Services and Deliverables, interest and, in respect of Services supplied but for which no invoice has been submitted, Disruptive Live may submit an invoice, which will be payable immediately on receipt;
9.4.2 any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement will remain in full force and effect;
9.4.3 neither party will have any further obligation to the other under this Agreement except as stated in this Agreement;
9.4.4 the Client will remain entitled to all rights granted or assigned to it under this Agreement; and
9.4.5 termination or expiry of this Agreement will not affect any of the 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 terms of this Agreement which existed at or before the date of termination or expiry.
10.1 Data Protection.
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications);
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
10.1.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10.1 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this Clause 10.1, “Applicable Laws” means (for so long as and to the extent that they apply to Disruptive Live) 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 the UK Data Protection Legislation and any other law that applies in the UK.
10.1.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Controller and Disruptive Live is the Processor. Without prejudice to the generality of Clause 10.1 1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Disruptive Live and/or lawful collection of the Personal Data by Disruptive Live on behalf of the Client for the duration and purposes of this Agreement.
10.1.3 Without prejudice to the generality of Clause 10.1.1, Disruptive Live will, in relation to any Personal Data processed in connection with the performance by Disruptive Live of its obligations under this Agreement:
10.1.3.1 process that Personal Data only on the documented written instructions of the Client unless Disruptive Live is required by Applicable Laws to otherwise process that Personal Data. Where Disruptive Live is relying on Applicable Laws as the basis for processing Personal Data, Disruptive Live will promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Disruptive Live from so notifying the Client;
10.1.3.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, 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);
10.1.3.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
10.1.3.4 not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
(i) the Client or Disruptive Live has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) Disruptive Live 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) Disruptive Live complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
10.1.3.5 assist the Client, at the Client’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;
10.1.3.6 notify the Client without undue delay on becoming aware of a Personal Data Breach;
10.1.3.7 at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of this Agreement unless required by Applicable Law to store the Personal Data; and
10.1.3.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 10.1.3 and allow for audits by the Client or the Client’s designated auditor and immediately inform the Client if, in the opinion of Disruptive Live, an instruction infringes the Data Protection Legislation
10.1.4 The Client does not consent to Disruptive Live appointing any third party processor of Personal Data under this Agreement.
10.1.5 Either party may, at any time on not less than 30 days’ notice, revise this clause 10.1 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which will apply when replaced by attachment to this Agreement).
10.2 Force majeure. Neither party will be in breach of the terms or this Agreement nor liable for delay in performing, or failure to perform, any of its obligations if such delay or failure result from events, circumstances or causes beyond its reasonable control.
10.3 Assignment and other dealings.
10.3.1 Disruptive Live shall be entitled to sub-contract its performance of the Services and/or Deliverables provided that any sub-contracting shall not relieve Disruptive Live from its obligations to the Client under this Agreement.
10.3.2 Neither party will assign, transfer, charge, declare a trust over or deal in any other manner with any or all of its rights and obligations under the terms of this Agreement without the other party’s prior written consent.
10.4 Confidentiality & Publicity.
10.4.1 Each party undertakes that it will not at any time during this Agreement, and for a period of three years after termination of this Agreement, disclose to any person any confidential information concerning the business, affairs, Clients, Clients or suppliers of the other party, except as permitted by clause 10.4.5.
10.4.2 Each party may disclose the other party’s confidential information:
10.4.2.1.1 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 terms of this Agreement. Each party will ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 10.4; and
10.4.2.1.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.4.3 Neither party will use any other party’s confidential information for any purpose other than to perform its obligations under the terms of this Agreement.
10.4.4 Disruptive Live will not, without the prior consent of the Client, make to any third party any statement or supply any information relating to or extract from Deliverables or to the Services or to the business or legal affairs of the other, other than to state that it is producing Deliverables (but this will not prevent proper disclosures of information to the parties’ professional advisers or as required by law).
10.4.5 The parties agree in good faith to consult throughout the term of this Agreement on publicity and promotional plans for the Client or Disruptive Live that involve use of Deliverables or in relation to Disruptive Live’s provision of the Services. All public relations, promotional and press activities undertaken by Disruptive Live in relation to the Services or Deliverables will be subject to the Client’s prior written approval (such approval not to be unreasonably withheld or delayed).
10.4.6 The Client acknowledges and agrees that any identifiable and original idea or concept presented by Disruptive Live in relation to any promotion or advertising campaign developed by Disruptive Live shall be acknowledged as being available only for such promotion or campaign and shall not be used for any other purposes whatsoever without Disruptive Live’s express prior written approval. Even where no promotion or campaign is agreed, the ideas and concepts presented to the Client shall remain strictly confidential and shall not be used in any way, including communication to any third party, without Disruptive Live’s prior written approval.
10.4.7 The Client acknowledges that nothing in this Agreement shall affect Disruptive Live’s right to use as it sees fit any general marketing or advertising intelligence gained by Disruptive Live in the course of its appointment.
10.4.8 The terms of and obligations imposed by this clause 10.4 shall survive the termination of this Agreement for any reason.
10.5 No partnership or agency. Nothing in this Agreement is intended to, or will be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other party, or authorise either party to make or enter into any commitments for or on behalf of the other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
10.6 Further Assurance. Disruptive Live will promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to this Agreement, and will use all reasonable endeavours to procure that any third parties will also do so as necessary. The Client will reimburse Disruptive Live for the reasonable costs properly incurred by it in complying with its obligations under this clause.
10.7 Remedies. Disruptive Live acknowledges that in the event of any breach of any of the terms of this Agreement by the Client, Disruptive Live’s sole remedy will be an action at law for damages and in no event will it be entitled to rescind this Agreement or receive any injunctive or other equitable relief which may affect the Client’s ability to exploit Deliverables.
10.8 Non-Solicitation During the Term and for a further period of 12 months after its termination, neither party shall (except with the prior written approval of the other party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the other party any person employed or engaged by such other party either in the provision or receipt of any Services or Deliverables, other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff of the other party.
10.9 Entire agreement.
10.9.1 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.
10.9.2 Each party acknowledges that in entering into this Agreement it does not rely on and will 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 will have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
10.10 Variation. No variation of the terms of this Agreement will be effective unless it is in writing and signed by the parties (or their authorised representatives, details of whom are set out in the Proposal).
10.11.1 A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and will not be deemed a waiver of any subsequent right or remedy.
10.11.2 A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law will not constitute a waiver of that or any other right or remedy, nor will 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 this Agreement or by law will prevent or restrict the further exercise of that or any other right or remedy.
10.12 Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it will 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 will be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 10.12 will not affect the validity and enforceability of the rest of this Agreement.
10.13.1 Any notice or other communication given to a party under or in connection with this Agreement will be in writing and will be:
10.13.1.1 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
10.13.1.2 sent by email to the address specified in the Proposal.
10.13.2 Any notice or communication will be deemed to have been received:
10.13.2.1 if delivered by hand, on signature of a delivery receipt; and
10.13.2.2 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 at the time recorded by the delivery service; and
10.13.2.3 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. In this clause 10.13.2.3, 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.
10.13.3 This clause 10.13 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
10.13.4 A notice given under this Agreement is not valid if sent by email.
10.14 Third party rights.
10.14.1 This Agreement does not give rise to any rights under this Agreements (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
10.14.2 The rights of the parties to rescind or vary this Agreement are not subject to the consent of any other person.
10.15 Governing law. This Agreement, 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, will be governed by, and construed in accordance with the law of England and Wales.
10.16 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.