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:
Business Day means any day which is not a Saturday, Sunday or public or bank holiday in England.
Client Materials: all information and materials, whether owned by Client or a third party, reasonably required by Alpha Grid to fulfil the Services.
Data Protection Laws: any applicable data privacy or data protection laws or regulations, including without limitation the Data Protection Act 2018 and all subordinate legislation, the General Data Protection Regulation (GDPR) and the Regulation on Privacy and Electronic Communications, (together, including any similar, analogous or successor laws, regulations or other standards). Data controller, data processor and personal data have the meanings given to them in GDPR.
Deliverables means the deliverables described in the relevant 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 inpidually, collectively or jointly with Client and on whatever media), including any and all reports, studies, data, diagrams, charts, specifications, computer programs, pre-contractual and contractual documents and all drafts thereof and working papers relating thereto
IPRs: 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, 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 relevant Statement of Work (including any disaster recovery services described therein).
Third Party Materials means material included in the Deliverables which have been assigned or licensed to Alpha Grid by third parties, excluding the Client Materials.
VAT: value added tax chargeable under the Value Added Tax Act 1994.
1.2 Clause headings are inserted for ease of reference only and shall have no effect in the construction of this Agreement. Unless the context otherwise requires words importing the singular shall include the plural and vice versa; the words “include” and “including” shall be construed as without limitation; and any reference to any legislative provision shall be deemed to include any subsequent re-enactment or amending provision. This Agreement negates and takes precedence over any Client terms and conditions.
2.1 Client appoints Alpha Grid to provide the Services and Alpha Grid shall perform the Services and deliver the Deliverables in accordance with the timelines set out in the Statement of Work with reasonable skill and care and in accordance with laws applicable to Alpha Grid.
2.2 Alpha Grid’s appointment is non-exclusive and Alpha Grid may provide services the same as or similar to any third party.
2.3 Client shall perform any obligations set out on the Statement of Work and promptly provide such co-operation as Alpha Gridmay reasonably request (including relevant, complete and accurate Client Materials, comments and feedback). Delays to any timelines that are due to acts, omissions or delays of Client may incur additional weekly project fees of 5% of the total Fee under the relevant Statement of Work.
2.4 Client acknowledges that due to the nature of the Client’s business, 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 to be provided is appropriate and complies with all laws and regulations applicable to Client.
2.5 Each party shall ensure that its Relationship Manager shall act as the single point of approval with authority to contractually bind that party.
2.6 In accordance with the limitations set out in the Statement of Work, Alpha Grid shall submit draft 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. For the avoidance of doubt, the Deliverables do not include any background or draft work products.
2.7 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; and (b) require a reasonable extension of time to perform its obligations at least equal to the delay caused by Client.
2.8 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 Fees and timelines.
2.9 If the parties agree such changes, they shall sign the Change Order which shall amend the relevant Statement of Work. If the parties are unable to agree a Change Order then the original Statement of Work shall remain in force.
3.1 Unless otherwise agreed in writing, upon payment of the Fees in full, 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 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 Deliverable.
3.3 Alpha Grid shall retain all IPRs in Alpha Grid’s trade marks and any other works created by or on behalf of Alpha Grid during preparation of the Deliverables and otherwise performing its obligations under this Agreement. Client shall not without Alpha Grid’s prior written consent include Alpha Grid’s trade marks or state or imply that Alpha Grid promotes or endorses any particular policy, products or services of the Client or any third party.
3.4 Client shall retain all IPRs in the Client’s IPRs (including without limitation any Client trade marks and any Client Materials. Client hereby grants to Alpha Grid a worldwide, non-exclusive, royalty free licence to use its IPRs for the sole purpose of carrying out its obligations under this Agreement.
3.5 Client agrees that Alpha Grid may use excerpts from the Deliverables for its own promotional and marketing purposes.
4.1 Client may request additional copies and/or storage of raw footage and masters. Unless stated in the Statement of Work, charges for such services will be provided on request.
5.1 Client shall pay the Fees 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.
5.2 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).
5.3 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).
5.4 If Alpha Grid, in its sole discretion, agrees that Client may pay the Fee in a foreign currency, Alpha Grid shall be entitled to amend the invoice to reflect the exchange rate on the date of invoice. Should there be a movement of 10% or more in the exchange rate between the date of signature of the Statement of Work and the date of an invoice, which when converted means that Alpha Grid’s Fee is less than was contractually agreed, then Alpha Grid may increase the Fee by a proportion equal to the movement of the exchange rate.
5.5 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 Barclays Bank PLC from time to time.
6.1 Each party warrants and represents to the other that it has the full power and authority to enter into this Agreement and that it is authorised to grant the other party the right to use its trade marks and any other materials it may provide to the other party under this Agreement.
6.2 Alpha Grid warrants and represents to Client that (excluding Third Party Materials and Client Materials) the Deliverables are original do not infringe the IPRs of any third party.
6.3 Client warrants and represents to Alpha Grid that all Client Materials provided to Alpha Grid hereunder shall not infringe the rights of any third party.
6.4 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.
6.5 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.
7.1 Client acknowledges that the Deliverables are not intended to 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.
7.2 Alpha Grid shall not have any liability to Client to the extent such liability arises from any Third Party Materials, Client Materials, a Client Default, or any breach of this Agreement by Client.
7.3 Neither party shall be liable to the other for any indirect, special, incidental or consequential loss or damage of any kind whatsoever.
7.4 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.
7.5 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.
8.1 Notwithstanding Client’s obligation to pay the total Fees 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.
9.1 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
9.2 The obligation in clause
9.1 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.
9.3 To the extent that either party shares any personal data with the other party, each party acts as data controller and warrants that it shall comply with applicable Data Protection Laws.
10.1 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.
10.2 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.
10.3 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.
10.4 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 days of receipt.
10.5 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.
11.1 With the exception of Client’s obligation to pay the Fees, 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 without limitation 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).
12.1 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 12.1.
12.2 No provision of this Agreement may be amended, modified, discharged or terminated other than by the express written agreement of the parties.
12.3 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.
12.4 This Agreement may be signed in counterparts and all signed copies of this Agreement shall be deemed to be originals of this Agreement. Copies signed by counterparts and sent by email (attaching a scanned copy of the signed hard copy) shall be deemed to be original copies. Any signature of this Agreement by digital or electronic means is legally binding.
12.5 Unless otherwise specified, 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).
12.6 Nothing in this Agreement will be deemed to create a partnership or agency or joint venture between the parties.
12.7 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.
12.8 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.
12.9 Neither party may assign or transfer the benefit of this Agreement without the prior written consent of the other party.
12.10 Alpha Grid may subcontract any obligations to third parties (including without limitation to survey data suppliers), provided that Alpha Grid shall be liable for all acts and omission of such third parties and shall remain the sole point of contact with Client.
12.11 No term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement.
12.12 Nothing in this Agreement shall restrict either party from seeking immediate legal or equitable relief for any infringement of its intellectual property rights.
12.13 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. Check out the online HTML CheatSheet here and save this link because you might need it while composing content for a web page. Use the online HTML converter to compose the content for your website easily.