TERMS AND CONDITIONS
1 Definitions and Interpretation
1.1 These Terms and Conditions together with the Statement of Work form the agreement between the parties (the Agreement). Words and phrases have the meaning given to them in the Statement of Work and this Clause 1:
Alpha Grid Marks: means all trade marks, service marks, trade names, logos and other branding (whether registered or not) of Alpha Grid, its group companies or its licensors.
Business Day: means any day which is not a Saturday, Sunday or public or bank holiday in England.
Client Marks: means the trade marks of Client whether registered or unregistered, including all word and logo marks and brand names.
Client Materials: means all information and materials, whether owned by Client or a third party, reasonably required by Alpha Grid to fulfil the Services.
Data Protection Laws: means any applicable data privacy or data protection laws or regulations, including the Data Protection Act 2018 and all subordinate legislation, the UK General Data Protection Regulation (UK GDPR), EU General Data Protection Regulation (EU GDPR) and the Regulation on Privacy and Electronic Communications, including any similar, analogous or successor laws, regulations or other standards. Data controller and personal data have the meanings given to them in UK GDPR.
Deliverables: means the deliverables described in the Statement of Work which are specifically developed, written, produced or created by Alpha Grid, its employees, agents or subcontractors as part of the Services (whether individually, collectively or jointly with Client and on whatever media). For the avoidance of doubt, Deliverables do not include any pre-existing materials produced by Alpha Grid or a third party, any background or draft work products, know-how, analysis, research or surveys not specifically listed as a Deliverable in the Statement of Work.
IPRs: means all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, database rights, trade marks, service marks, image rights, rights to privacy, know-how, confidential information, trade secrets, design rights and all rights in the nature of unfair competition rights or rights to sue for passing off.
Services: means the services described in the Statement of Work.
Third Party Materials: means materials and attached IPRs included in the Deliverables which have been provided by third parties, including any Licensed Third Party Materials and any Client Materials.
Usage Restrictions: means, if any, limitations placed on Client’s use of the Deliverables, including those that are due to the inclusion of Licensed Third Party Materials contained in the Deliverables.
VAT: value added tax chargeable under the Value Added Tax Act 1994 in the UK or similar tax elsewhere.
1.2 The words “include” and “including” shall be construed as without limitation; and any reference to any statute includes any subsequent re-enactment or amending provision. This Agreement negates and takes precedence over any Client terms and conditions.
2 The Parties’ Obligations
2.1 Alpha Grid shall perform the Services, and deliver the Deliverables, as set out in the Statement of Work, with reasonable skill and care and in accordance with all laws applicable to Alpha Grid.
2.2 Client shall perform any obligations set out in the Statement of Work and promptly provide such co-operation as Alpha Grid may reasonably request (including relevant, complete and accurate Client Materials, comments and feedback).
2.3 Client acknowledges that Alpha Grid is relying on Client’s knowledge and expertise of its own business, legal and regulatory requirements, and it is therefore Client’s responsibility to ensure that the scope, content and nature of the Services and the Deliverables are appropriate and comply with all laws and regulations applicable to Client. To the fullest extent of the law Alpha Grid excludes all liability arising from Client’s failure to ensure the Deliverables comply with any laws, regulations or codes applicable to Client’s business.
2.4 Each party shall ensure that its Relationship Manager (as defined in the Statement of Work) shall act as the single point of approval with authority to contractually bind that party.
2.5 In accordance with the limitations set out in the Statement of Work, Alpha Grid shall submit near-final versions of the Deliverables to Client for its feedback, and Client shall have seven (7) Business Days from the date of submission to provide written feedback (email is sufficient) to Alpha Grid, identifying any errors or omissions. Any further rounds of feedback permitted shall be in accordance with the above seven (7) Business Day timescales. If Client fails to provide feedback within the relevant timeframe, then Alpha Grid may consider the relevant amendment round closed, and in the case of the final round, the Deliverables accepted. The maximum number of rounds of feedback is set out in the Statement of Work.
2.6 If Alpha Grid’s performance of its obligations is prevented or delayed by any act or omission of Client, its staff, agents, or subcontractors, (Client Default) then Alpha Grid shall notify Client of such Client Default and shall not be liable to Client for any losses or costs suffered by Client as a result of such prevention or delay. Without prejudice to any other right or remedy it may have, Alpha Grid may at its sole discretion: (a) suspend performance of this Agreement until Client remedies the Client Default; (b) require a reasonable extension of time to perform its obligations at least equal to the delay caused by Client; or (c) charge Client additional weekly project fees or 5% of the total Charge under the Statement of Work for each week or part thereof that the Client Default persists.
2.7 If Client wishes to make a change to the Services commissioned pursuant to a signed Statement of Work, it shall notify Alpha Grid providing as much detail as is reasonably necessary to enable Alpha Grid to prepare an amended Statement of Work. Alpha Grid may, at its reasonable discretion, then set out in writing (the Change Order) the proposed changes to the Statement of Work and the effect these changes will have on the provision of the Services, including the Charges and timelines. Where such request relates solely to an extension or delay of the timelines in the Statement of Work, then subject to (in Alpha Grid’s sole discretion) Alpha Grid’s ability to accommodate such request, the Change Order shall include additional charges of 5% of the total Charge per week, or part thereof, of such requested delay or extension.
2.8 If the parties agree to such changes, they shall sign the Change Order which shall amend the Statement of Work. If the parties are unable to agree a Change Order then the original Statement of Work shall remain in force.
3 Intellectual Property Rights
3.1 Subject to clause 3.2 and unless otherwise agreed in writing, upon payment of the Charges, Alpha Grid assigns to Client (by way of present and where appropriate future assignment) all right, title and interest in and to the IPRs in the Deliverables.
3.2 Client acknowledges that the Deliverables may contain Third Party Materials that are neither owned nor controlled by Alpha Grid. To the extent that any IPRs in such Third Party Materials cannot be assigned to Client, Alpha Grid will notify Client in advance of using such Third Party Materials. If Client wishes to proceed with Third Party Materials that can only be licensed to Client (Licensed Third Party Materials) then Alpha Grid will use commercially reasonable efforts to procure licences or sublicences for such Licensed Third Party Materials and will notify Client of any Usage Restrictions and any additional licensing fees.
3.3 If Alpha Grid is unable to procure such licences or sublicences or the Client does not wish to proceed with the suggested Licensed Third Party Materials for any other reason, then Alpha Grid will seek to procure alternative Third Party Materials.
3.4 Client agrees that for Deliverables containing Licensed Third Party Content, additional usage fees may be charged by the relevant licensor depending on the rights of use being licensed. If such fees are applicable, Alpha Grid will obtain Client’s consent in advance of incurring such additional fees and will amend the Charges accordingly.
3.5 Client agrees that any rights in the Deliverables which are licenced or sublicensed attach to the Deliverables “as provided” and Client may not disassemble or repurpose the Deliverables or its constituent parts if it contains Licensed Third Party Content.
3.6 To the extent that Client wishes to use any Licensed Third Party Materials contained in the Deliverables for any purposes outside those set out in the relevant Statement of Work, the Client shall be wholly responsible for obtaining any necessary licenses or consents from the relevant rights owner for such additional use. Alpha Grid is unable to assist Client in obtaining additional rights.
3.7 Client shall retain all IPRs in the Client’s Marks and any Client Materials for which Client is the rights owner. Client hereby grants to Alpha Grid a worldwide, non-exclusive, royalty free licence to use the Client Marks and Client Materials for the sole purpose of carrying out its obligations under this Agreement.
3.8 Alpha Grid, shall retain all IPRs in the Alpha Grid Marks. As between the parties, Alpha Grid shall retain all IPRs in any other works created by or on behalf of Alpha Grid in the course of performing its obligations under this Agreement.
3.9 Client shall not use any Alpha Grid Marks or state or imply that Alpha Grid promotes or endorses any particular policy, product or service of the Client or any third party.
3.10 Client authorises Alpha Grid to insert a credit notice for Alpha Grid as producer of the Deliverables on the end credits or in another appropriate position on the Deliverables.
3.11 Client agrees that Alpha Grid may use excerpts from the Deliverables for its own promotional and marketing purposes.
4 Charges and Payment
4.1 Client shall pay the Charges in accordance with the Payment Schedule or, if the Payment Schedule is silent, within 30 days of the date specified in the invoice Alpha Grid sends to Client.
4.2 The Charges exclude the following, which shall be payable by the Client monthly in arrears, following submission of an appropriate invoice: (a) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom Alpha Grid engages in connection with the Services (Travel Expenses), which shall be set out in the Statement of Work; and (b) the cost of any Licensed Third Party Materials or services procured by Alpha Grid from third parties for the provision of the Services (Third Party Fees), (Travel Expenses together with Third Party Fees are Additional Fees).
4.3 Alpha Grid shall invoice the Client for the Charges at the intervals specified in the Statement of Work. If no intervals are so specified, Alpha Grid shall invoice the Client at the end of each month for Services performed during that month.
4.4 The amount of any Additional Fees will be set out in a statement and provided to Client each month. Alpha Grid will then invoice Client for any such Additional Fees.
4.5 If Client fails to make a payment by the due date, then without prejudice to any other right or remedy that Alpha Grid may have, Alpha Grid may suspend all Services until the payment has been made in full (and such non-payment shall be deemed a Client Default).
4.6 All sums payable to Alpha Grid under this Agreement: (a) are exclusive of VAT, and Client shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and (b) 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).
4.8 If Client fails to pay in full on the due date any sum payable by it under or in connection with the Agreement, interest on the outstanding amount shall accrue on a daily basis from the due date until the date of payment (whether before or after judgment) at the rate of 3% per annum above the base rate of HSBC Bank from time to time.
5 Warranties and Indemnities
5.1 Each party warrants and represents to the other that it has the full power and authority to enter into this Agreement.
5.2 Alpha Grid warrants and represents to Client that (excluding Third Party Materials) the Deliverables are original and do not infringe the IPRs of any third party.
5.3 Client warrants and represents to Alpha Grid that all Client Materials provided to Alpha Grid hereunder are fully cleared for Alpha Grid’s use for the purposes of meeting its obligations under this Agreement and shall not infringe the IPRs of any third party. Client shall indemnify Alpha Grid against any liability arising from any third party claims that Alpha Grid’s use of any Client Materials infringes the IPRs of such third party.
5.4 Alpha Grid agrees to indemnify Client against any damages (including reasonable legal costs) which may be awarded by a court of competent jurisdiction against Client or may be agreed to be paid to any third party, in each case in respect of any third party claim that Client’s use of the Deliverables in accordance with the terms of this Agreement infringes the IPRs of such third party (such claim, a TPC), provided that: (a) the Client gives written notice to Alpha Grid of such TPC immediately on becoming aware of it and does not at any time admit liability or otherwise attempt to settle or compromise such TPC without Alpha Grid’s prior written consent; (b) Alpha Grid shall have sole conduct of the defence or compromise of any TPC and as between Alpha Grid and Client, Alpha Grid shall have the sole right to any costs and damages awarded as a result; and (c) Client acts in accordance with the reasonable instructions of Alpha Grid and provides Alpha Grid with such assistance as it shall reasonably require, at Alpha Grid’s reasonable cost, in respect of the conduct of such defence or compromise.
5.5 Except as expressly set out in this Agreement and to the extent permissible by law, all warranties, conditions, representations, terms or undertakings, express or implied, statutory or otherwise are hereby excluded.
6 Limitation of Liability
6.1 Client acknowledges that the Deliverables do not provide advice or recommendations. Alpha Grid shall not be liable for any reliance on, or action or decision taken, as a result of the Deliverables.
6.2 Alpha Grid shall not have any liability to Client to the extent such liability arises from any Client Materials, a Client Default, or any breach of this Agreement by Client.
6.3 Neither party shall be liable to the other for any indirect, special, incidental or consequential loss or damage of any kind whatsoever.
6.4 The aggregate liability of Alpha Grid under this Agreement shall in no circumstances exceed 150% of the total amount of fees paid or payable under the Statement of Work.
6.5 Nothing in this Agreement shall operate to exclude or restrict either party’s liability for: (a) death or personal injury caused by its negligence; (b) fraud or fraudulent misrepresentation; (c) any claim under an indemnity contained in this Agreement; or (d) any liability which cannot be limited or excluded by law.
7.1 Notwithstanding Client’s obligation to pay the total Charges due, if post-execution of this Agreement, Client requests to cancel, in whole or in part, any Statement of Work, Alpha Grid may, in its sole discretion agree that the equivalent value of the Services unused at the time of cancellation can be credited to another statement of work executed within six (6) months of the date of such previous cancellation.
8 Confidentiality and Personal Data
8.1 Each party agrees to keep confidential (both before, during and after the Term) the terms of this Agreement and all information, whether written or oral, concerning the business or affairs of the other (including information relating to the other party’s customers or suppliers, financial information, projections, technology, product ideas, marketing plans or business plans) that it has received or obtained from the other or may receive or obtain from the other and shall not use the same without the prior written consent of the disclosing party for any purpose except to exercise its rights and perform its obligations under or in connection with this Agreement. Such obligation shall not apply in the case of any disclosure required by law or to information which is in the public domain (other than as a result of a breach of any confidentiality obligation) or to information which is independently developed by a party without reference to the other party’s confidential information or to information which is provided to a party by a third party entitled to so provide it.
8.2 To the extent that either party shares any personal data with the other, each party acts as data controller and warrants that it shall comply with applicable Data Protection Laws. This clause 8.2 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Data Protection Laws.
9 Term and termination
9.1 This Agreement shall commence on the final date of signature and shall continue in force until delivery of the final Deliverable, unless terminated earlier in accordance with this Agreement.
9.2 Either party may terminate this Agreement on immediate written notice if: (a) the other party is in material breach of this Agreement and in the case of a breach capable of remedy having been notified of any such breach in writing has failed to remedy the same within fourteen (14) days; (b) the other party shall cease to carry on its business; or (c) the other party is unable to pay its debts as they fall due or any event analogous to the other occurs in any jurisdiction.
9.3 Alpha Grid shall be entitled to terminate this Agreement immediately by notice in writing to Client if Client fails to pay any amount due under this Agreement on the due date for payment and remains in default seven (7) days after being notified by Alpha Grid in writing to make such payment.
9.4 On termination or expiry of this Agreement, Client shall immediately pay to Alpha Grid all outstanding unpaid invoices which are not subject to a bona fide dispute, and in respect of Services supplied but for which no invoice has been submitted, Alpha Grid may submit an invoice, which shall be payable within thirty (30) days of receipt.
9.5 Termination or expiry shall not affect (a) any provision in this Agreement which is expressly or by implication intended to come into effect on, or to continue in effect after, such expiry or termination; or (b) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry.
10 Force majeure
10.1 With the exception of Client’s obligation to pay the Charges, neither party shall be liable for any failure to perform its obligations under this Agreement if such performance is hindered or prevented by any matter beyond the reasonable control of the party whose performance is hindered or prevented (including by reason of any catastrophic failure, interruption, or degradation of any third party telecommunications network or system or hardware or the Internet or any part of it) (a Force Majeure Event). If a Force Majeure Event continues for more than one (1) month then either party may immediately terminate this Agreement on written notice to the other (provided that the Force Majeure Event is still continuing on the date of that notice).
11.1 Each party will at all times comply with all applicable laws related to bribery, corruption and related matters including the US Foreign Corrupt Practices Act and the UK Bribery Act. Alpha Grid may terminate this Agreement immediately on written notice if it reasonably believes Client has acted in breach of this clause 11.1.
11.2 No provision of this Agreement may be amended, modified, discharged or terminated other than by the express written agreement of the parties.
11.3 No failure or delay by either party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise by either party of any right, power or privilege preclude any further exercise thereof or the exercise of any other right, power or privilege.
11.4 This Agreement may be signed in counterparts. Any signature of this Agreement by digital or electronic means is legally binding.
11.5 Any notice required under this Agreement must be in writing, and be addressed to the other party’s Relationship Manager. Notices must be delivered by hand or by recorded delivery or courier. Any notice shall be deemed to have been served if delivered by hand, at the time and date of delivery; and if sent by recorded delivery or courier, upon the date of receipt (as evidenced by signature).
11.6 Nothing in this Agreement will be deemed to create a partnership or agency or joint venture between the parties.
11.7 This Agreement constitutes the entire agreement between the parties as to the subject matter hereof and supersedes all previous communications, representations and arrangements, either written or oral, and each party hereby acknowledges that no reliance is placed on any representation made by the other party before the date of this Agreement but not embodied in this Agreement.
11.8 If any provisions of this Agreement shall be held illegal or unenforceable by a court of competent jurisdiction then such provisions shall be severed and the remainder of this Agreement shall remain in full force and effect unless the business purpose of this Agreement is substantially frustrated thereby in which case this Agreement shall automatically terminate.
11.9 Neither party may assign or transfer the benefit of this Agreement without the prior written consent of the other party.
11.10 Alpha Grid may subcontract any obligations to third parties, provided that Alpha Grid shall be liable for all acts and omissions of such third parties and shall remain the sole point of contact with Client.
11.11 No term of this Agreement shall be enforceable by a person who is not a party to this Agreement.
11.12 Nothing in this Agreement shall restrict either party from seeking immediate legal or equitable relief for any infringement of its intellectual property rights.
11.13 This Agreement and any non-contractual obligations arising under it shall be governed by and construed in accordance with the laws of England and Wales and the parties submit to the exclusive jurisdiction of the English courts.
Updated on 06/04/2023