Terms and Conditions
1.1. Definitions. In these Conditions, the following definitions apply:
Assigned Materials: means that part of the Deliverables created or developed by, or on behalf of, MBA under this Agreement excluding the MBA Materials and Third Party Materials.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Change: has the meaning defined in clause 7.1.
Charges: the charges payable by the Client for the supply of the Services by MBA in accordance with clause 8.
Commencement Date: has the meaning set out in clause 3.4.
Conditions: these terms and conditions as amended from time to time in accordance with clause 16.7.
Confidential Information: means the terms of the Contract and all information whether in written or any other form which has been or may be disclosed in the course of the discussions leading up to the entering into or performance of the Contract and which is identified as confidential or is clearly by its nature confidential including information relating to the Contract or the Services, the MBA Materials or other data used or generated in the provision of the Services, or any of the Client’s products, operations, processes, plans or intentions, know-how, trade secrets, market opportunities, customers and business affairs.
Contract: the contract between MBA and the Client for the supply of Services in accordance with these Conditions which includes any SOW.
Client: the firm or company which purchases Services from MBA that is identified in the applicable SOW.
Deliverables: the deliverables identified by MBA as consisting of the main objectives of the project for the Client and set out in the SOW.
Disbursements: has the meaning defined in clause 8.1 together with the service charge thereon which is referred to in clause 8.2.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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.
MBA: means McDonald Butler Associates Limited is a company incorporated and registered in England and Wales under company registration number 04949733, whose registered office is Third Floor, One London Square, Cross Lanes, Guildford, Surrey, United Kingdom, GU1 1UN.
MBA Materials: means that part of the Deliverables comprising of any inventions, subroutines, source code, software, techniques and tools which are owned by MBA or its licensors (including any enhancements to the same created by or on behalf of MBA as part of the Services).
Order: the Client’s Order for MBA’s Services, which is made by the Client returning to MBA a signed copy of the SOW.
Personal Data: shall have the meaning as defined in Section 1 of the Data Protection Act 1998.
Services: the services, including the Deliverables, supplied by MBA to the Client for each specific project, as set out on each occasion in the SOW.
Specification: the specification of the project and the Services to be performed by the parties, as set out in the SOW.
Statement of Works / SOW: the written specification prepared by MBA and signed by the Client, setting out the Services to be provided by MBA to the Client, a quotation for the costs thereof and an estimate of any disbursement costs and such other specifications as are relevant.
Third Party Materials means that part of the Deliverables comprising of the inventions, subroutines, software programs, designs, techniques, tools and other materials which are licensed from a third party by MBA where set out in the applicable SOW.
1.2. Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
(e) a reference to writing or written includes e-mails; and
(f) in the event of any conflict or inconsistency between the provisions of these Conditions and the provisions of the SOW then the latter shall prevail.
2. Basis of contract
2.1 These Conditions set out the basis upon which MBA enters into all contracts for Services with its Clients. They should be considered in conjunction with the SOW which set out the exact specification and scope of the Services to be provided to the Client on each occasion.
2.2 The relationship of MBA to the Client will be that of an independent contractor and nothing in this Contract shall render it or its employees/agents an employee, worker, agent or partner of the Client and MBA shall not hold itself out as such.
2.3 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of MBA which is not set out in the Contract, and that the standard terms of any purchase order issued by Client shall be null and void. No variations, modifications or changes herein or hereof shall be binding upon either party hereto unless set forth in writing and duly executed by both parties.
2.4 Any samples, drawings, descriptive matter or advertising issued by MBA, and any descriptions or illustrations contained in MBA’s web site, catalogues or brochures or other media, are issued or published for the sole purpose of giving an approximate idea of the services described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. FORMATION AND TERM
3.1 At pre-contract stage, MBA will discuss and identify with the Client a project specification to include all or any of the following (as appropriate): draft programme details, Deliverables, timescales, an estimate of the Charges and any necessary disbursements, copy, layouts, artwork and scripts of the various items in the project. The project specification will then be sent to the Client by MBA in the form of a SOW.
3.2 Any quotation for Services given by MBA to the Client in a SOW or otherwise shall not constitute an offer, and shall only be valid for a period of 20 Business Days from the date of issue of the SOW. The SOW shall, once returned to MBA signed by the Client, constitute an Order, being an offer by the Client to purchase the Services of MBA in accordance with the SOW, subject to these Conditions.
3.3 The Order shall only be deemed to be accepted when MBA issues a written acceptance of the Order (or otherwise provides the Deliverables to the Client) at which point and on which date the Contract shall come into existence (Effective Date). After the Effective Date no amendments shall be made to the Services except in accordance with clause 7 and 8.
3.4 The Services shall commence on the date stated in the SOW (Commencement Date).
3.5 The term of this Contract shall commence on the Commencement Date and shall continue until the earliest of the completion of the Services within the Specification by MBA or termination of the Contract by either party in accordance with the provisions of this Contract.
4. MBA’S OBLIGATIONS
4.1 MBA shall supply the Services to the Client in accordance with the Specification in all material respects.
4.2 MBA shall use all reasonable endeavours to meet any performance dates specified in the SOW, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
5.1 MBA warrants to the Client that the Services will be provided using reasonable care and skill.
5.2 MBA shall use reasonable endeavours to ensure that the staff it assigns to the Client (the Account Team) will not represent competing clients, without the prior agreement of the Client. The Client acknowledges that MBA may work for competitors and MBA will endeavour to maintain impartiality and confidentiality unless otherwise specified in the SOW. The Client will, where practicable, advise MBA of any intention to engage or use internal or external consultancy services other than those documented in the SOW. In the event of MBA becoming aware of any potential conflict of interest that may arise between the interests of the Client and the Account Team, the parties shall seek to agree as soon as is reasonably practicable, reasonable steps to remove any potential effect of, or to avoid any such conflict.
5.3 MBA assumes full responsibility for the actions of MBA’s employees, agents and contractors performing the Services. MBA shall be solely responsible for their supervision and daily direction and control. It is agreed that neither the Client, nor MBA, will offer employment to any employee of the other party during the period of the Contract or within 12 months after its expiration. Failure to comply with this provision will result in the Client being invoiced by MBA for an additional 6 months’ Charges with immediate effect or in MBA immediately forfeiting 6 months of the Charges payable by the Client.
5.4 MBA warrants that the Deliverables will not violate or infringe the intellectual property rights of any third party. MBA will defend the Client against any suit brought against the Client that is based on a claim that a Deliverable, when used within the scope of this Contract, infringes any patent, copyright or trademark of a third party within a Berne Convention territory and will indemnify the Client against any liability that it may incur under a final award with respect to such a claim provided that if the Client wishes to assert its right to be indemnified it shall:
(a) promptly notify MBA in writing of the claim with full details of the claim;
(b) provide MBA and its advisors will full access to premises and personnel and all relevant assets, documents and records that client possesses or controls (with the right to take copies) for the purpose of investigating the matter and enabling MBA to take the action referred to in this clause 5.4;
(c) allow MBA (at its request) to use its chosen advisors and to have the exclusive conduct of all negotiations and proceedings (to include for the recovery of costs of the Client) and provide MBA with such reasonable assistance required by MBA, regarding the claim;
(d) not, without the consent of MBA, make an admission relating to the claim; and
(e) promptly take any action and give any information and assistance as MBA may reasonably request to dispute, resist, appeal, compromise, defend, remedy or mitigate the matter or enforce against a third party the Client’s rights in relation to the matter.
6. Client’s obligations
6.1 The Client shall:
(a) ensure that any information recorded in the SOW or otherwise provided to MBA in respect of the Contract is complete and accurate;
(b) co-operate with MBA in all matters relating to the Services;
(c) co-operate with any actions or inputs specifically identified by MBA in the SOW or otherwise requested by MBA;
(d) provide MBA, its employees, agents, consultants and subcontractors, with access to the Client’s premises, staff and other facilities as reasonably required by MBA;
(e) provide MBA with such information and materials as MBA may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(f) prepare the Client’s premises for the supply of the Services in accordance with MBA’s instructions where appropriate;
(g) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the Commencement Date;
(h) be solely responsible for ensuring that any Deliverables or Services which it has approved in writing are compliant with applicable law; and
(i) keep and maintain all materials, equipment and other MBA Materials at the Client’s premises in safe custody at its own risk and in good condition until returned to MBA, and not dispose of or use them other than in accordance with MBA’s written instructions or authorisation.
6.2 If MBA’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
(a) MBA shall without limiting its other rights or remedies 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 to the extent the Client Default prevents or delays MBA’s performance of any of its obligations;
(b) MBA shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from MBA’s failure or delay to perform any of its obligations as set out in this clause 6.2; and
(c) the Client shall reimburse MBA on written demand for any costs or losses sustained or incurred by MBA arising directly or indirectly from the Client Default.
in the event of the project being abandoned, MBA shall be entitled to recognise the Charges incurred up to that point
7. Change control
7.1 At the written request of either party, the parties shall meet, on reasonable notice, to discuss matters relating to the Services. If either party wishes to change the scope or execution of the Services or vary any aspect of the SOW or any terms of the Contract (Change), it shall submit details of the requested change to the other in writing.
7.2 If either party requests a Change, MBA shall, within a reasonable time, provide a written estimate to the Client of:
(a) the likely time required to assess and implement the Change;
(b) any necessary variations to the Charges that arise from the Change;
(c) the likely effect of the Change on the Specification; and
(d) any other impact of the Change on this Contract.
7.3 No Change shall be binding unless and until the parties have agreed the necessary variations to the Contract in accordance with clause 16.7.
7.4 Notwithstanding clause 7.3, the Client shall not unreasonably withhold its consent to any Change that is required by MBA to comply with any applicable safety or statutory requirements.
8. Charges and payment
8.1 The Charges for the Services will be specified in the SOW together with MBA’s estimate only of any administrative, travel, accommodation, subsistence, entertainment, exhibition and display materials, messenger services, photography and print costs or expenses that it expects to incur on behalf of the Client in connection with the performance of the Services (Disbursements) and the Client agrees to pay the Charges and any Disbursements actually incurred by MBA in accordance with this clause 8.
8.2 All Disbursements incurred by MBA under the Contract shall be subject to a service charge of 17.65% unless otherwise agreed.
8.3 MBA will not incur any Disbursements in excess of the estimate in the SOW without prior written approval from the Client.
8.4 MBA shall issue an invoice to Client following MBA’s acceptance of the Order, in the sum representing 20% of the total Charges and 100% of the estimated Disbursements and this invoice shall be payable by the Client within 30 Business Days of the date of the invoice. MBA shall thereafter invoice the Client the remainder of its Charges and any additional Disbursements during the course of the project or on completion of the Services, in accordance with the SOW and the Client shall pay each such invoice within 30 days of the date of the invoice.
8.5 Irrespective of the Commencement Date MBA shall not be required to commence performance of the Services until it receives payment in full of the initial invoice, without any liability to the Client for any impact on the wider project delivery caused by a delay in commencement of the Services.
8.6 All invoices must be discharged:
(a) in the currency stated upon the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by MBA by the applicable due date, and
(c) time for payment shall be of the essence of the Contract.
8.7 All amounts payable by the Client under the Contract are exclusive of amounts in respect of tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by MBA to the Client, the Client shall, on receipt of a valid VAT invoice from MBA, pay to MBA 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 Charges and Disbursements.
8.8 If the Client fails to make any payment due to MBA under the Contract by the due date for payment then the Client shall pay interest on the overdue amount at the rate of 4% per cent per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
8.9 MBA reserves the right to recover any third party costs incurred in the collection of overdue invoices from the Client.
8.10 The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). MBA may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by MBA to the Client.
9. Intellectual property rights
9.1 Subject to and upon complete satisfaction of the Client’s obligations under Clause 8 and save where expressly provided in the SOW, MBA hereby assigns to Client (or such entity as Client may nominate) with full title guarantee free of all encumbrances, by way of present and future assignment of Intellectual Property Rights, all of the Intellectual Property Rights in the Assigned Materials.
9.2 Ownership of the Intellectual Property Rights in any MBA Materials (excluding any Third Party Materials) shall remain vested in MBA. MBA hereby grants to Client a perpetual, irrevocable (except if this Contract is terminated by MBA under clause 12.2), non-exclusive, non-transferrable licence to use the MBA Materials in conjunction with the Deliverables in consideration for the Charges. Use by Client includes use by its officer, employees, agents, contractors and service providers provided that each such person uses the MBA Materials on behalf of Client and provided Client is liable for any breach of this Contract by such persons.
9.3 Client acknowledges that ownership of the Intellectual Property Rights in any Third Party Materials included in or supplied with the Deliverables is and shall remain vested in MBA’s licensors.
9.4 The Client acknowledges that the Client’s use of any Third Party Materials is conditional on MBA obtaining a written licence from the relevant licensor on such terms as will entitle MBA to license such rights to the Client.
10. Confidentiality AND NON-Disclosure
10.1 The parties agree that Confidential Information:
(a) shall be used solely for the purpose for which it was furnished in connection with performance of the Contract;
(b) shall be maintained in strict confidence and shall not be disclosed to third parties, provided, however, that MBA may disclose Confidential Information to its sub-contractors and their employees who need to have access to such Confidential Information for the purposes of providing the Services on the condition that MBA shall procure compliance by such sub-contractors and their employees with the terms of this clause 10; and
(c) upon termination of the Contract shall be returned to the disclosing party, together with all copies, or (at the disclosing party’s option) destroyed.
10.2 Any disclosure of Confidential Information permitted under clause 10.1(b) shall be in confidence, shall only be to the extent that any persons to whom the information is disclosed need to know the same for the performance of their duties and the receiving party shall be obliged to procure that all such persons are aware of the obligation of confidentiality and undertake to comply with it.
10.3 The obligations of confidentiality and restricted use set out in clauses 10.1 and 10.2 are not applicable to Confidential Information that:
(a) was previously or becomes known to the receiving party, free from any obligation to keep the same confidential (provided that Confidential Information disclosed in contemplation of the provision of the Services shall still remain subject to such obligations);
(b) is or becomes generally available to the public, other than as a direct or indirect result of unauthorised disclosure by the receiving party or a person engaged by the receiving party contrary to their respective obligations of confidentiality;
(c) is shown to have been independently developed by the receiving party, its officers, employees, agents or contractors;
(d) the parties agree in writing need not be kept confidential; or
(e) is required to be disclosed by law or by regulation or by the order of any governmental authority or court provided that, to the extent permitted by law, prior to any disclosure, the receiving party notifies the disclosing party of the information to be disclosed and the circumstances in which the disclosure is alleged to be required as early as reasonably possible before such disclosure must be made and, at the disclosing party’s request and cost, assists the disclosing party in avoiding or limiting any such disclosure.
10.4 Without prejudice to any other rights and remedies that the disclosing party may have, the receiving party agrees that if Confidential Information is used or disclosed or threatened to be used or disclosed other than in accordance with the terms of the Contract, the disclosing party shall, without proof of special damage, be entitled to seek an injunction, specific performance or other equitable relief for any actual or threatened breach of this clause 10.
10.5 Notwithstanding clause 10.1, MBA may make reasonable references to the Client as its client in its advertising and/or promotional literature and other materials.
10.6 Where in order for MBA to provide the Service either party needs to supply information or data to the other party that constitutes Personal Data, the supplying party will comply with the Data Protection Act 1998 and similar applicable laws in any other country in which the Services are provided which arise in relation to any Personal Data processed in connection with the Contract and shall:
(a) use the Personal Data solely for the purpose of providing or receiving the Services under the Contract (as appropriate);
(b) comply with any reasonable instructions from the other party concerning the processing of the Personal Data;
(c) effect and maintain appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, alteration, unauthorised disclosure or access, or damage to, Personal Data;
(d) take reasonable steps to satisfy the other party that use of the Personal Data is compliant with this clause 10 upon receiving reasonable notice from the other party;
(e) not disclose the Personal Data to any person unless the other party has given its prior written consent to such disclosure and Recipient has procured that such person is bound by the same obligations as the Recipient under the Contract;
(f) promptly notify the other party if it receives any requests from an individual with respect to the Personal Data processed, including but not limited to data access requests, data rectification requests and all like requests, and shall not respond to any such requests unless expressly authorised to do so by the other party;
(g) promptly and properly deal with enquiries and requests from the other party in relation to the processing of Personal Data under the Contract and provide other reasonable assistance and support;
(h) assist and support the other party in the event of an investigation by a data protection regulator or similar authority, if and to the extent that such investigation relates to the processing of Personal Data under the Contract;
(i) only perform its processing of Personal Data in Member States of the European Economic Area unless it has obtained the other party’s prior written consent; and
(j) upon termination or expiration of the Contract for whatever reason the party shall immediately cease to process the Personal Data and shall promptly return to the other party all such Personal Data, or destroy the same, in accordance with such instructions as may be given by the other party at that time.
Without prejudice to the foregoing, the obligations set out in this clause 10.6 shall remain in force notwithstanding termination or expiration of the Contract.
10.7 It shall be the Client’s responsibility to keep any Personal Data provided to MBA up to date and the Client warrants and undertakes to MBA that all of its Personal Data and contact details are accurate and complete.
10.8 MBA may pass the Client’s Personal Data to any suppliers MBA may use to provide services that involve processing data on MBA’s behalf for the purpose of providing the Services and as contemplated by the terms of the Contract.
10.9 Where as part of the Services MBA is to create or enhance a database of potential customer leads on behalf of the Client and that database contains Personal Data, the Client acknowledges that upon delivery of such database to the Client the Client shall become the data controller in relation to such Personal Data and MBA shall have no further data processing obligations towards the Client after delivery of the database has been accepted by the Client. Unless otherwise expressly agreed, any Intellectual Property Rights vesting in such database shall constitute an MBA Material for the purpose of clause 9.2.
11. Limitation of liability
11.1 Nothing in these Conditions shall limit or exclude either party’s liability for:
(a) death or personal injury caused by either party’s negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
11.2 Subject to clause 11.1:
(a) MBA shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, business or anticipated savings, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) MBA’s total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the aggregate annual value of Charges owed by the Client to MBA pursuant to this Agreement.
11.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
11.4 This clause 11 shall survive termination of the Contract.
12.1 Without limiting its other rights or remedies, either party may terminate the Contract by giving the other party 30 days’ written notice provided such notice does not expire before the end of the agreed duration of the Services specified in any SOW.
12.2 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(g) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(i) any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2(b) to clause 12.2(h) (inclusive);
(j) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(k) the other party’s financial position deteriorates to such an extent that in MBA’s opinion the Client’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
12.3 Without limiting its other rights or remedies, MBA may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 7 days after being notified in writing to do so.
12.4 Without limiting its other rights or remedies, MBA may suspend provision of the Services under the Contract or any other contract between the Client and MBA if the Client becomes subject to any of the events listed in clause 12.2(b) to clause 12.2(h), or MBA reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.
13. Consequences of termination
On termination of the Contract for any reason:
(a) the Client shall immediately pay to MBA all of MBA’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, MBA shall submit an invoice, which shall be payable by the Client immediately on receipt;
(b) the Client shall return all MBA Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then MBA may enter the Client’s premises and take possession of them. Until the MBA Materials and Deliverables in the Client’s possession or control have been returned to MBA, the Client shall be solely responsible for their safe keeping and will not use them for any purpose;
(c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication survive termination shall continue in full force and effect.
14. Force majeure
14.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of MBA including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of MBA or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
14.2 MBA shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
14.3 If the Force Majeure Event prevents MBA from providing any of the Services for more than 6 weeks, MBA shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.
15. Dispute resolution
15.1 In the event of any dispute, question or difference arising as to the construction or effect of the Contract (“a Dispute”), the same shall first be referred to the Chief Executive Officer for the Client and the Chief Executive of MBA who shall negotiate in good faith to achieve commercially a resolution of the dispute.
15.2 If such negotiations shall not take place or shall be unsuccessful then, prior to and as a condition precedent to the submission of a Dispute to arbitration, the parties shall refer the Dispute to “Mediation”. The Mediator shall be agreed upon by the parties and failing such agreement within 10 days of one party requesting the appointment of a Mediator and providing their suggestion, the Mediator shall be appointed by the then President of the Law Society of England and Wales. Unless agreed otherwise, the parties shall share equally the costs of the mediation. The use of mediation will not be construed under the doctrine of laches, waiver or estoppel to affect adversely the rights of either party;
15.3 Should the parties fail to resolve the Dispute within 30 days of reference to Mediation, either Mediation party may refer such Dispute to arbitration in London by a single arbitrator to be appointed (in default of agreement) by the President for the time being of the Chartered Institute of Marketing under the Arbitration Act 1950 (as amended) and his decision shall be final and binding on the parties hereto.
15.4 Nothing in this clause shall exclude the right of a party to seek injunctive relief from a court of competent jurisdiction.
16.1 Assignment and other dealings
(a) The Client may not at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may not subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent without the prior written consent of MBA.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service or commercial courier.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 16.2(a); 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If one party gives notice to the other of the possibility that any provision or part-provision of this Contract 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.
16.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
16.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
16.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by an authorised representative of each party.
16.8 Governing law. This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England.
16.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).