THE CONDITIONS
- Interpretation.
- Basis of Agreement.
- Supply of Services.
- Client’s obligations.
- Fees and payment.
- Intellectual property rights.
- Data protection.
- Freedom of Information.
- Limitation of liability.
- Termination.
- Consequences of termination.
- Force majeure.
- confidentiality.
- Notices.
- General
SPECIAL ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSES 3, 4, 5 AND 9.
1. Interpretation
1.1 The following definitions and rules of interpretation apply in these Conditions.
Agreement: the Agreement between Alterline and the Client for the supply of Services in accordance with these Conditions and incorporating the Engagement Letter and Project Outline.
Alterline: Alterline Research Limited, a company incorporated in England and Wales (registered company number 07426250) whose trading address is at The Edge Business Centre, Clowes Street, Salford, Manchester, England, M3 5NA.
Alterline Materials: has the meaning set out in clause 4.1.6.
Basis: the basis of the engagement for the Services, as detailed in the Engagement letter.
Business Day: a day other than a Saturday, Sunday or public holiday in England.
Client: the entity which purchases Services from Alterline.
Client Data: means any personal data provided by or on behalf of the Client (or a user of the Services).
Client Default: has the meaning set out in clause 4.2.
Commencement Date: has the meaning given in the Engagement Letter.
Conditions: these terms and conditions as amended from time to time in accordance with clause 15.4.
Confidential Information: information, including information of a commercially sensitive nature, in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, its Intellectual Property Rights, clients, products, affairs and finances of Alterline for the time being confidential to Alterline and trade secrets including, without limitation, technical data and know-how relating to Alterline or delivered in the course of performing the Services or any of its clients, agents, distributors, shareholders, management or business contacts and including (but not limited to) information that Alterline creates, develops, receives or obtains in connection with this Engagement such as the Deliverables and whether or not such information (if in anything other than oral form) is marked or notified as being confidential.
Contacts: means Alterline’s business connections, associates, contractors and employees, whether a Seller, Alterline, researcher or sourcer.
Contract: the contract between Alterline and the Client for the supply of Services in accordance with these Conditions.
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); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Deliverables: all records, reports, documents, drawings, designs, specifications, materials, pictorial representations, papers, transparencies, photos, graphics, logos, typographical arrangements, software programs, inventions, ideas, discoveries, developments, improvements or innovations and all materials embodying them in whatever form, including but not limited to hard copy and electronic form, prepared by Alterline or on Alterline’s behalf in connection with the provision of the Services.
Dispute: has the meaning given in clause 15.9.
Dispute Notice: has the meaning given in clause 15.9.1.
Engagement Letter: the letter the subject matter of which details the basis of the engagement and nature of the Services and which together with these Conditions (and any other document specifically referred to in them) forms the Agreement.
Fees: the fees payable by the Client to Alterline in accordance with these Terms and Conditions and as defined in the Engagement Letter and any additional costs and expenses.
Force Majeure Event: has the meaning given in clause 15.2.
ICC: the International Chamber of Commerce.
Initial Term: has the meaning given in the Engagement Letter.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks and service marks, business names 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 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.
Lead Consultant: the individual whose name and details are set out in the Engagement Letter.
Loss: actions, awards, charges, claims, compensation, costs, damages, demands, expenses, fees, fines, liabilities, losses, penalties, proceedings and settlements and Losses shall be construed accordingly.
Order: the Client’s written purchase order for Services (in whatever form this may be and which shall for the avoidance of doubt include email).
Project Outline: the section of the Engagement Letter outlining details of the Services.
Request for Information: a request for information or an apparent request under the FOIA or the Environmental Information Regulations.
Services: means the research services described in the Project Outline, which are being delivered by Alterline to the Client, including any Deliverables on the Basis.
Specification: the description or specification of the Services provided in writing by Alterline to the Client.
Subsequent Term: periods equivalent in length to the Initial Term.
Term: means the duration for which this Agreement shall remain in force.
VAT: has the meaning given in clause 5.4.
Wave: means a tranche of the Services defined by reference to a number of academic years or surveys specified in the Engagement Letter.
1.2 Interpretation:
1.2.1 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.
1.2.2 Any words following the Conditions 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 Conditions.
1.2.3 A reference to writing or written includes emails.
2. Basis of Agreement
2.1 The Project Outline shall be deemed to be an invitation to treat and any purported acceptance of the Project Outline by the Client shall be deemed to take the form of an offer. The Purchase Order is only valid 30 days from its date of issue. Where any amendments are required to be made to the Project Outline, the Client must notify Alterline in writing following which Alterline shall revoke the initial Project Outline and issue a revised version.
2.2 Alterline’s issuance of the Engagement Letter shall of itself be construed as an offer, capable of acceptance by the Client in accordance with the methods set out therein.
2.3 The Agreement shall commence on Commencement Date and unless terminated earlier by either party in accordance with clause 10, where the Basis is:
2.3.1 ‘Solution’, it shall continue for the Initial Term and automatically thereafter for consecutive Subsequent Terms in the absence of the Client serving notice on Alterline of no less than 1 year or 1 Wave (where annual) with effect from the end of the Initial Term or applicable Subsequent Term; or
2.3.2 ‘Collaboration’ or ‘Project’, it shall continue indefinitely thereafter and expire upon completion of the Services and performance by the parties of their respective obligations.
2.4 Any descriptive matter or advertising issued by Alterline, and any descriptions or illustrations contained in Alterline’s marketing literature, 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 Agreement or have any contractual force.
2.5 These Conditions apply to the Agreement to the exclusion of any other Conditions that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 If there are any inconsistencies between the Engagement Letter, the Project Outline and these Conditions, document first referred to in this list shall take precedence.
3. Supply of Services
3.1 Alterline is hereby appointed as the exclusive supplier of the Services to the Client on the Basis in accordance with the terms and conditions of this Agreement.
3.2 Alterline shall use reasonable endeavours to meet any performance dates specified, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Alterline reserves the right to amend the Services 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 Alterline shall notify the Client in any such event.
3.4 Alterline warrants to the Client that the Services will be provided using reasonable care and skill and devote such time for the proper performance of the Services.
4. Client’s obligations
4.1 The Client shall:
4.1.1 ensure that the Conditions of the Engagement Letter and any information that it provides, which is to be incorporated into this Agreement or used or relied upon as a basis of providing Services are true, complete and accurate in all respects;
4.1.2 co-operate with Alterline in all matters relating to the Services;
4.1.3 provide Alterline, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities as reasonably required by Alterline;
4.1.4 provide Alterline with such information and materials as Alterline may reasonably require in order to supply the Services, and ensure that such information is true, complete and accurate in all material respects;
4.1.5 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;
4.1.6 keep all materials, equipment, documents and other property of Alterline (Alterline Materials) at the Client’s premises in safe custody at its own risk, maintain Alterline Materials in good condition until returned to Alterline, and not dispose of or use Alterline Materials other than in accordance with Alterline’s written instructions or authorisation; and
4.1.7 comply with any additional obligations as set out in the Engagement Letter.
4.2 If Alterline’s performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
4.2.1 without limiting or affecting any other right or remedy available to it, Alterline shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays Alterline’s performance of any of its obligations;
4.2.2 Alterline shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Alterline’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3 the Client shall reimburse Alterline on written demand for any costs or losses sustained or incurred by Alterline arising directly or indirectly from the Client Default.
5. Fees and payment
5.1 The Fees for the Services shall be calculated on a time and materials basis as set out in the Engagement Letter and where:
5.1.1 calculated in accordance with Alterline’s daily fee rates, as set out in the Engagement Letter, the same are calculated for each individual on the basis of an eight-hour day from 9.00 am to 5.00 pm worked on Business Days;
5.1.2 Alterline shall be entitled to charge an overtime rate of 150% of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 5.1.5; and
5.1.3 Alterline shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom Alterline engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Alterline for the performance of the Services, and for the cost of any materials.
5.2 Alterline reserves the right to increase the Fees on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index 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 the latest available figure for the percentage increase in the Retail Prices Index.
5.3 The Client shall pay each invoice submitted by Alterline in full and in cleared funds to a bank account nominated in writing by Alterline and time for payment shall be of the essence of the Agreement.
5.4 All amounts payable by the Client under the Agreement 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 Agreement by Alterline to the Client, the Client shall, on receipt of a valid VAT invoice from Alterline, pay to Alterline 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.
5.5 If the Client fails to make a payment due to Alterline under the Agreement by the due date, then, without limiting Alterline’s remedies under clause 10, the Client 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 5 will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
5.6 All amounts due under the Agreement 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).
6. Intellectual property rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services including those subsisting in any questionnaire, discussion guides or methodologies (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by Alterline.
6.2 Alterline grants to the Client or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable to use the Deliverables licence strictly for purpose for which Alterline was engaged to provide the Services.
6.3 The Client shall not sub-license, assign or otherwise transfer, copy, modify or otherwise make use of the Intellectual Property Rights in the Deliverables, beyond the purposes set out in clause 6.2.
6.4 The Client grants Alterline a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to Alterline for the term of the Agreement for the purpose of providing the Services to the Client.
6.5 The Client:
6.5.1 warrants that the Services provided under this Agreement by Alterline, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
6.5.2 shall indemnify, keep indemnified and hold harmless Alterline in full from and against any and all Losses suffered or incurred by Alterline arising out of or in connection with any claim brought against Alterline, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s rights, including any Intellectual Property Rights arising out of, or in connection with the Services under the Agreement.
6.6 Nothing in this Agreement shall prevent Alterline from making use of any Intellectual Property Right or the Deliverables created during the Terms in connection with any third party.
7. Data protection
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 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 7:
7.1.1 Applicable Laws means (for so long as and to the extent that they apply to Alterline) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law;
7.1.2 Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK;
7.1.3 Permitted Recipients means the parties to this agreement, the employees of each party, any third parties engaged to perform obligations in connection with this agreement; and
7.1.4 Shared Personal Data means the personal data to be shared between the parties under clause 7.5.
7.2 The parties acknowledge that for the purposes of the Data Protection Legislation:
7.2.1 clause 7.4 shall apply where the Client is the controller and Alterline is the processor; and
7.2.2 clauses 7.5 – 7.6 shall apply where the Client and Alterline are joint controllers.
7.3 Without prejudice to the generality of clause 7.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Alterline for the duration and purposes of the Agreement.
7.4 Without prejudice to the generality of clause 7.1, Alterline shall, in relation to any personal data processed in connection with the performance by Alterline of its obligations under the Agreement:
7.4.1 process that personal data only on the documented written instructions of the Client unless Alterline is required by Applicable Laws to otherwise process that personal data. Where Alterline is relying on Applicable Laws as the basis for processing personal data, Alterline shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Alterline from so notifying the Client;
7.4.2 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);
7.4.3 ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
7.4.4 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:
7.4.4.1 the Client or Alterline has provided appropriate safeguards in relation to the transfer;
7.4.4.2 the data subject has enforceable rights and effective legal remedies;
7.4.4.3 Alterline complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
7.4.4.4 Alterline complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the personal data;
7.4.5 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;
7.4.6 notify the Client without undue delay on becoming aware of a personal data breach;
7.4.7 at the written direction of the Client, delete or return personal data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the personal data; and
7.4.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 7 and allow for audits by the Client or the Client’s designated auditor and immediately inform the Client if, in the opinion of Alterline, an instruction infringes the Data Protection Legislation.
7.5 Without prejudice to the generality of clause 7.1, each party shall:
7.5.1 ensure that it has all necessary notices and consents in place to enable lawful transfer of the Shared Personal Data in accordance with this agreement;
7.5.2 give full information to any data subject whose personal data may be processed under this agreement of the nature such processing. This includes giving notice that, on the termination of this agreement, personal data relating to them may be retained by or, as the case may be, transferred to the Permitted Recipients, their successors and assignees;
7.5.3 not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
7.5.4 ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this agreement;
7.5.5 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
7.5.6 not transfer any personal data received outside the EEA unless the transferor:
7.5.6.1 complies with the provisions of Articles 26 of the GDPR (in the event the third party is a joint controller); and
7.5.6.2 ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 of the GDPR; or (ii) there are appropriate safeguards in place pursuant to Article 46 GDPR; or (iii) Binding corporate rules are in place or (iv) one of the derogations for specific situations in Article 49 GDPR applies to the transfer.
7.6 Each party shall assist the other in complying with all applicable requirements of the UK Data Protection Legislation. In particular, each party shall:
7.6.1 consult with the other party about any notices given to data subjects;
7.6.2 promptly inform the other party about the receipt of any data subject access request;
7.6.3 provide the other party with reasonable assistance in complying with any data subject access request;
7.6.4 not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party wherever possible;
7.6.5 assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the UK Data Protection Legislation with respect to security, personal data breach notifications, data protection impact assessments and consultations with supervisory authorities or regulators;
7.6.6 notify the other party without undue delay on becoming aware of any breach of the UK Data Protection Legislation;
7.6.7 use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;
7.6.8 maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by the other party or the other party’s designated auditor; and
7.6.9 provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the UK Data Protection Legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties’ compliance with the UK Data Protection Legislation.
8. Freedom of Information
8.1 In this clause 8:
8.1.1 FOIA means the Freedom of Information Act 2000; and
8.1.2 EIR means the Environmental Information Regulations 2004.
8.2 The Client is subject to the requirements of the FOIA and the EIRs. Alterline will:
8.2.1 provide all necessary assistance to the Client to enable it to comply with its Information disclosure obligations;
8.2.2 send all Requests for Information it receives relating to this Agreement to the Client as soon as practicable and within a maximum of 2 Business Days from receipt;
8.2.3 provide the Client with a copy of all information belonging to the Client requested in the Request for Information which is in its possession or control in the form that the Client requires; and
8.2.4 not respond directly to a Request for Information unless authorised in writing to so by the Client.
8.3 The Client may be required under the FOIA and EIRs to disclose Information (including commercially sensitive information without consulting or obtaining consent from Alterline. The Client will take reasonable steps to notify Alterline of a Request for Information where it is permissible and reasonably practical for it to do so. However, the Client will be responsible for determining in its absolute discretion whether any commercially sensitive information and/or any other information are exempt from disclosure in accordance with the FOIA and/or the EIRs.
9. Limitation of liability
9.1 Nothing in the Agreement limits any liability which cannot legally be limited, including liability for:
9.1.1 death or personal injury caused by negligence of Alterline, its employees, agents or subcontractors;
9.1.2 fraud or fraudulent misrepresentation; and
9.1.3 breach of the Conditions implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
9.2 Alterline shall not be liable to the Client in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatsoever the cause thereof:
9.2.1 for any economic Loss of any kind whatsoever, including without limit loss of profit, business, contracts, revenues or anticipated savings; or
9.2.2 for damage to the Client’s reputation of goodwill; or
9.2.3 for any Loss resulting from any claim made by any third party; or
9.2.4 for any special, indirect or consequential Loss arising under or in connection with the Agreement.
9.3 Alterline’s maximum liability in contract, tort (including negligence), breach of statutory duty or otherwise arising by reason of or in connection with the Agreement shall in no circumstances exceed the total Fees paid by the Client to Alterline under the Agreement.
9.4 The Client shall indemnify, keep indemnified and hold harmless Alterline in full from and against any and all Losses suffered or incurred by Alterline in contract, tort, (including negligence), breach of statutory duty or otherwise arising by reason of or in connection with the Agreement and any claim, including any third party claim, brought against Alterline, its agents, subcontractors or consultants which has been caused by the act or omission of the Client.
9.5 This clause 9 shall survive termination of the Agreement.
10. Termination
10.1 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
10.1.1 the other party commits a material breach of any term of the Agreement and (if such a breach is remediable) fails to remedy that breach within 28 days of that party being notified in writing to do so;
10.1.2 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;
10.1.3 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
10.1.4 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 Agreement has been placed in jeopardy.
10.2 Without affecting any other right or remedy available to it, Alterline may terminate the Agreement with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Agreement on the due date for payment.
10.3 Without affecting any other right or remedy available to it, Alterline may suspend the supply of Services under the Agreement or any other Agreement between the Client and Alterline if it has the right to terminate this Agreement.
11. Consequences of termination
11.1 On termination or expiration of the Agreement, the Client shall:
11.1.1 immediately pay to Alterline all of Alterline’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Alterline shall submit an invoice, which shall be payable by the Client immediately on receipt; and
11.1.2 return all of Alterline Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then Alterline may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Agreement.
11.2 Termination or expiry of the Agreement 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 Agreement which existed at or before the date of termination or expiry.
11.3 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect.
12. Force majeure
12.1 Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 3 months, the party not affected may terminate this agreement by giving 14 days’ written notice to the affected party.
12.2 Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
a) acts of God, flood, drought, earthquake or other natural disaster;
b) epidemic or pandemic;
c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
d) nuclear, chemical or biological contamination or sonic boom;
e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
f) collapse of buildings, fire, explosion or accident;
g) any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party);
h) non-performance by suppliers or subcontractors; and
i) interruption or failure of utility service.
12.3 Provided each party has complied with clause 12.5, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
12.4 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
12.5 The Affected Party shall:
12.5.1 as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
12.5.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
12.6 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 3 months, the party not affected by the Force Majeure Event may terminate this agreement by giving 14 days’ written notice to the Affected Party.
13. confidentiality
13.1 Each party undertakes that it shall not disclose to any person any confidential information concerning the business, affairs, clients or suppliers of the other party, except as permitted by clause 13.2.
13.2 Each party may disclose the other party’s confidential information:
13.2.1 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 Agreement. 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 13; and
13.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Agreement.
14. Notices
14.1 Any notice or other communication given to a party under or in connection with the Agreement 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 sent by email to the respective address set out in the Engagement Letter.
14.2 Any notice or communication shall be deemed to have been received if:
14.2.1 delivered by hand, on signature of a delivery receipt;
14.2.2 sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after; or
14.2.3 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.
14.3 This clause 14 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.
14.4 At its own expense, each party shall, and shall use reasonable endeavours to procure that any necessary third party shall, execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.
15. General
15.1 Assignment and other dealings.
15.1.1 Alterline may at any time assign, mortgage, charge, subcontractors, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement.
15.1.2 The Client shall not assign, transfer, mortgage, charge, subcontractors, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement without the prior written consent of Alterline.
15.2 No Partnership or agency.
15.2.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
15.2.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
15.3 Entire agreement.
15.3.1 The 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.
15.3.2 Each party acknowledges that in entering into the Agreement it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.
15.3.3 Nothing in this clause shall limit or exclude any liability for fraud.
15.4 Variation. Except as set out in these Conditions, no variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.5 Waiver. A waiver of any right or remedy under the Agreement 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 Agreement 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 Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
15.6 Severance.
15.6.1 If any provision or part-provision of the Agreement 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 15.6 shall not affect the validity and enforceability of the rest of the Agreement.
15.6.2 If one party gives notice to the other of the possibility that any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
15.7 Third party rights. Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Agreements (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
15.8 Language. If this agreement is additionally signed in or translated into, any language other than English, the English language version shall prevail.
15.9 Multi-tiered dispute resolution procedure. If a dispute arises out of or in connection with this Contract or the performance, validity or enforceability of it (Dispute) then, except as expressly provided in this Contract, the parties may at their discretion follow the procedure set out in this clause:
15.9.1 Either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, employees at management level (or the nearest equivalent) of the parties shall attempt in good faith to resolve the Dispute.
15.9.2 If the management level employees are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to the directors of the parties who shall attempt in good faith to resolve it.
15.9.3 If the directors of the parties are for any reason unable to resolve the Dispute within 30 days of it being referred to them and the Customer is not registered in the United Kingdom, the parties will attempt to settle it by mediation.
15.9.4 The parties shall have recourse to mediation in accordance with the ICC’s Mediation Rules, which are deemed to be incorporated by reference into this clause.
15.9.5 If the Dispute is not settled by mediation within 30 days of the commencement of the mediation, or such further period as the parties shall agree in writing, the Dispute shall be submitted to the International Court of Arbitration of the ICC whose seat shall be London and shall be finally settled under the ICC’s Arbitration Rules, by one or more arbitrators appointed in accordance with the ICC’s Arbitration Rules. The Emergency Arbitrator Provisions under the ICC’s Arbitration Rules shall not apply.
15.9.6 This clause 15.9 takes the form of an arbitration agreement and is governed by the law of England and Wales.
15.9.7 The language to be used in the mediation and in the arbitration shall be English.
15.9.8 If the directors of the parties are for any reason unable to resolve the Dispute within 30 days of it being referred to them and the Customer is registered in the United Kingdom, the parties may commence court proceedings under clause 15.11 in relation to the whole or part of the Dispute.
15.10 Governing law. The 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 shall be governed by and construed in accordance with the law of England and Wales.
15.11 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 Agreement or its subject matter or formation.