Found Website Development Terms & Conditions

Background

(A) The Agency has provided the Client with a Statement of Works for the Project.

(B) The Client wishes to appoint the Agency to provide the Services (as defined hereunder) and the Agency accepts such appointment on the terms and conditions set out below.

Agreed terms

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in this agreement.

Acceptance: the acceptance or deemed acceptance of the Deliverables by the Client pursuant to clause 5.1.

Acceptance Tests: the tests to be carried out on the Deliverables as set out in clause 6.1 and as more fully described in the Functional Specification.

Basecamp: a web-based project-management tool used by the Agency to assist with collaboration on the Project. The Client’s login details shall be provided by the Agency to the Client prior to the commencement of the Services.

Business Day: any day (other than a Saturday or Sunday) when banks are generally open for normal business in London.

Change Control Procedures: the procedures set out in Schedule 2.

Charges: the charges in respect of the Services and Deliverables and Contract Services, an estimate of which is provided in the Statement of Works and Contract Services Statement of Works, together with any charges arising from the Change Control Procedures. A precise costing in respect of the Charges shall be confirmed in the Functional Specification.

Confidential Information: has the meaning given in clause 18.1.

Contract Services: means the services to be provided under the Contract Services Statement of Work.

Contract Services Statement of Work: means the Contract Services project initiation document agreed between the parties which shall include (but not be limited to) the specific Contract Services to be provided and their specification (which shall be further detailed following initial project team meetings), the Charges and the outline Project Plan together with any other additions agreed between the parties from time to time.

Deliverables: the deliverables as set out in the Statement of Work.

Force Majeure Event: has the meaning given in clause 17.1.

Functional Specification: the document issued by the Agency at the completion of the planning phase of the Project Plan and approved by the Client (such approval not to be unreasonably withheld or delayed) and which shall set out the final specification of the Deliverables and the procedures by which it can be determined that the Client’s requirements have been met.

Intellectual Property Rights: all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.

Materials: the content provided to the Agency by the Client from time to time for incorporation in the Deliverables.

Non-Agency Defects: those defects described in clause 4.7.

Phase: in relation to the Project Plan, one of the key phases of work identified in the Project Plan.

Project: the provision by the Agency of the Services and Deliverables as set out in this agreement.

Project Plan: the timetable as set out in the Statement of Works within which the Agency will implement the Project.

Services: the design and development services to be provided pursuant to this agreement as set out in the Statement of Works.

Site Software: the software for the Deliverables commissioned by the Client as specified in the Statement of Works.

Specification: the specification for the Deliverables as set out in the Statement of Work and the Functional Specification.

Statement of Works: the website project initiation document agreed between the parties which shall include (but not be limited to) the specific Services and Deliverables to be provided and their specification (which shall be further detailed following initial project team meetings), the Charges and the outline Project Plan together with any other additions agreed between the parties from time to time.

Third Party Products: those third party software products set out in Schedule 3.

Visitor: a visitor to the Deliverables.

1.2 References to clauses and schedules are (unless otherwise provided) references to the clauses and schedules of this agreement and clause and schedule headings do not affect the interpretation of this agreement.

1.3 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules. In the event and to the extent only of any conflict between the clauses and the Schedules, the clauses shall prevail.

1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.5 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.6 References to including and include(s) mean respectively including without limitation and include(s) without limitation.

1.7 References to content include any kind of text, information, image, or audio or video materialwhich can be incorporated in a website for access by a Visitor to that website.

1.8 Writing or written includes faxes and email.

1.9 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.

1.10 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.11 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.12 Any obligation on a party not to do something includes an obligation to not to allow that thing to be done.

1.13 Any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English legal term in that jurisdiction.

2. appointment

2.1. The Client appoints the Agency to provide the Services, Deliverables and Contract Services in accordance with this agreement.

3. Agency Obligations

3.1 The Agency shall:

(a) design, develop and deliver the Deliverables in accordance with the Project Plan; and

(b) provide the Services and the Deliverables in accordance with the Statement of Work and the Functional Specification.

(c) provide the Contract Services in accordance with the Contract Services Statement of Works.

4. Development and acceptance of the Deliverables

4.1 In consideration of the payment by the Client of the Charges, the Agency agrees to provide the Project to the Client in accordance with the Statement of Work, the Functional Specification and the terms and conditions of this Agreement and agrees to provide the Contract Services in accordance with the Contract Services Statement of Works.

4.2 In respect of the Deliverables to be provided by the Agency, it shall ensure that each materially conforms to the Functional Specification at the time of the delivery.

4.3 On completion by the Agency of a Deliverable, it shall promptly notify the Client in writing and shall as soon as reasonably practicable carry out Acceptance Tests. The Acceptance Tests shall test material compliance of the Deliverable with the Functional Specification and the form and detail of such tests is set out in the Functional Specification.

4.4 Acceptance of the Deliverable shall occur when the Deliverable has passed the Acceptance Tests. The Agency shall notify the Client when the tests have been passed and provide the results of the Acceptance Tests to the Client in writing.

4.5 Acceptance of the Site shall be deemed to have taken place upon the occurrence of any of the following events:

(a) the Client uses any part of the Site for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or

(b) the Client unreasonably delays the start of the relevant Acceptance Tests or any retests for a period of seven working days from the date on which the Agency is ready to commence running such Acceptance Tests or retests.

4.6 In the event that the Deliverable does not materially conform to the Functional Specification following Acceptance Tests, the Parties shall use their reasonable endeavours to agree a timetable in which the Agency shall modify the Deliverable in order for it to conform to the Functional Specification. The procedure set out in this clause shall then be repeated until such time as the Client has accepted the relevant Deliverable, (which acceptance shall not be unreasonably withheld or delayed).

4.7 If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Client, or by one of the Client’s sub-contractors or agents for whom the Agency has no responsibility (Non-Agency Defect), the Site shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Agency Defect. The Agency shall provide assistance reasonably requested by the Client in remedying any Non-Agency Defect by supplying additional services or products. The Client shall pay the Agency in full for all such additional services and products at the Agency’s then current fees and prices.

5. Client responsibilities

5.1 The Client acknowledges that the Agency’s ability to manage the Project and to provide the Services, Deliverables and Contract Services is dependent upon the full and timely co-operation of the Client (which the Client agrees to provide) and any information and data the Client provides to the Agency. Accordingly, the Client shall:

(a) provide the Agency with access to, and use of, all information, data and documentation reasonably required by the Agency for the performance by the Agency of its obligations under this agreement.

(b) at all times promptly comply with all reasonable requests for information made by the Agency in connection with the performance of the Services and delivery of the Deliverables.

(c) ensure that any third party previously providing services to it relating to the Services shall fully co-operate with the Agency and, in particular, at all times shall hand over all relevant materials which are in its possession or provide all relevant information reasonably requested by the Agency.

5.2 The Client shall be responsible for the accuracy and completeness of the Materials on the Deliverables in accordance with clause 14.

5.3 The Client shall maintain a backup copy of all Materials.

5.4 In the event that the Client is subject to the Financial Services Act the following shall apply:

(a) the Client will notify the Agency of the regulatory body with which the Client is registered;

(b) the Client will advise the Agency of the name of the Client’s compliance officer or officers;

(c) in respect of any copy submitted by the Agency, the Client’s compliance officer will be required to notify the Agency in writing of the Client’s approval. In no circumstances will the Agency submit copy for publication or broadcasting without such approval.

6. approvals and authority

6.1 For the purposes of this agreement, “written approval” shall include approval by:

(a) by fax;

(b) by e-mail;

(c) by message posted on the project’s page in Basecamp.

6.2 The Client shall respond to all requests by the Agency for approval within 5 working days. In the event that no response is received by the Agency in that time, the project will be placed on hold by the Agency and any consequential delays to the Project will not be the responsibility of the Client.

6.3 All meetings and telephone calls between the parties involving decisions of substance shall be contact-reported by the Agency which will issue a copy of such contact report to the Client or post a message containing the contact report on Basecamp such that the client is notified within 3 working days following the meeting or conversation. If the subject matter of a contact report is not questioned by the Client within 3 working days of its receipt, it will be taken to be a correct record of the meeting or telephone conversation to which it refers.

7. Third party products

7.1 The Agency will ensure that, where Third Party Products are used in the Deliverables, that the Agency will procure all necessary licences to use such Third Party Products, and will provide these to the Client.

7.2 The Third Party Products shall be supplied in accordance with the relevant licensor’s standard terms. Unless otherwise specified in Schedule 3 hereto, the one-off licence fee for Third Party Products is included in the Charges payable pursuant to clause 9.1.

8. Project management

8.1 Each party shall appoint a project manager (Project Manager) who shall:

(a) provide professional and prompt liaison with the other party; and

(b) have the necessary expertise and authority to commit the relevant party.

8.2 The project managers will collaborate on the Project primarily through the use of Basecamp.

9. Charges and payment

9.1 The Agency shall issue invoices at such intervals to ensure that payment of the Charges is received in accordance with the Fees section contained in the Statement of Work.

9.2 The Client shall pay to the Agency the Charges set out in any invoice within 5 days of the date of the Agency’s invoice.

9.3 All Charges are exclusive of VAT and VAT will be included in the Agency’s invoices as a separate and additional item where appropriate.

9.4 If the Client fails to pay any amount payable by it under this agreement, the Agency shall be entitled, but not obliged, to charge the Client interest on the overdue amount. Such interest shall be payable by the Client forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 4% per annum above the base rate for the time being of Barclays Bank plc. Such interest shall accrue on a daily basis and be compounded quarterly. The Agency reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998. The Agency may suspend the Project by suspending the Services and the provision of the Deliverables until payment has been received and the Project Plan shall be extended as appropriate.

9.5 Should the Client wish to engage the Agency on a new project a further statement of work enclosing a charges estimate will be submitted by the Agency to the Client. The Client may approve the further statement of work by confirming in writing that the further statement of work may proceed and the Agency shall be entitled to confirm its acceptance of the approval in writing that the new project shall commence on the basis of the statement of work. In such event, the new and agreed statement of work shall become a Statement of Work document for purposes of this agreement and the only terms thereto shall be under this agreement.

9.6 Unless otherwise agreed in advance in respect of any Project, and subject to clause 7, any third party costs and expenses and disbursements incurred by the Agency for products or services additional to those to be provided under the Statement of Works and/or the Functional Specification, shall be payable in addition to the Charges and will be invoiced monthly in arrears. The Agency will await the Client’s written authorisation before purchasing from third parties on the Client’s behalf.

9.7 The Agency shall use its best efforts to obtain vendor invoices on a timely basis for work performed by third parties on behalf of the Client. However, the Client shall remain responsible for reimbursement to the Agency for work performed regardless of the date of vendor invoices and final billing to the Client.

9.8 On a monthly basis, the Client shall reimburse to the Agency at net cost all reasonable travel and subsistence expenses incurred for travel outside Greater London.

9.9 For the avoidance of doubt, the Charges shall include one copy of each of the Deliverables together with one backup copy. Any additional copies of the Deliverables will be made available to the Client at prices to be agreed between the parties.

9.10 Any additional fees to the Charges must be agreed to by the Client. Upon the Client’s acceptance for agreed additional fees, the Agency is then entitled to invoice the Client in order to account for the extra resources used by the Agency as a result of making changes, alterations, curtailments or modifications and any additional third party costs and the Client will be liable to pay for the additional fees.

9.11 The Charges are based on information provided by the Client to the Agency at the time the Charges were fixed. In the event that any incorrect or incomplete information is given, the Agency may increase or decrease the Charges (by written notice to the Client setting out the reasons for such increase or decrease) in order to make such reasonable adjustment to the Charges as is necessary to take account of any such incorrect or incomplete information.

10. Warranties

10.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.

10.2 The Agency shall perform the Services with reasonable care and skill.

10.3 The Agency warrants that the Deliverables will be free of disabling devices.

10.4 The Agency warrants that the Deliverables will perform substantially in accordance with the Functional Specification for a period of three months from Acceptance. If the Deliverables does not so perform, the Agency shall, for no additional charge, carry out any work necessary in order to ensure that the Deliverables substantially comply with the Functional Specification.

10.5 The warranty set out in clause 11.4 shall not apply to the extent that any failure of the Deliverables to perform substantially in accordance with the Functional Specification is caused by any Materials

10.6 The warranty set out in clause 11.4 shall not apply to the extent that any failure of the Deliverables to perform substantially in accordance with the Functional Specification is caused by any alterations made to the Deliverables or the Materials by the Client or third parties following Acceptance.

10.7 This agreement sets out the full extent of the Agency’s obligations and liabilities in respect of the supply of the Services and the Deliverables. All conditions, warranties or other terms concerning the Services and the Deliverables which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.

10.8 The Client hereby warrants that it has not been induced to enter into this agreement by any prior representations whether oral or in writing except as expressly contained in this agreement and the Client hereby waives claim for breach of any such representations which are not so expressly mentioned.

11. Limitation of remedies and liability

11.1 Nothing in this agreement shall operate to exclude or limit the Agency’s liability for:

(a) death or personal injury caused by its negligence; or

(b) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

(c) fraud; or

(d) any other liability which cannot be excluded or limited under applicable law.

11.2 Neither Party shall be liable to the other for any damage to software, loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.

11.3 Subject to clause 11.1, the other party’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with this agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed 100% of the total Charges payable by the Client to the Agency under this agreement.

12. Intellectual property rights

12.1 All Intellectual Property Rights in the Deliverables (including, but not limited to, the content of the Deliverables and the Site Software) arising in connection with this agreement shall be the property of the Agency, and the Agency hereby grants the Customer a non-exclusive, irrevocable licence of such Intellectual Property Rights for the purpose of operating the Site.

12.2 The Client shall indemnify the Agency against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party.

12.3 The Agency shall indemnify the Client against all damages, losses and expenses arising as a result of any action or claim that the Deliverables infringe any Intellectual Property Rights of a third party in the UK, other than infringements referred to in clause 12.2.

12.4 The indemnities in clause 12.2, clause 12.3 and clause 13.3 are subject to the following conditions:

(a) the indemnified party promptly notifies the indemnifier in writing of the claim;

(b) the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent;

(c) the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and

(d) the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.

12.5 The indemnities in clause 12.3, clause 12.4 and clause 13.3 may not be invoked to the extent that the action or claim arises out of the indemnifier’s compliance with any designs, specifications or instructions of the indemnified party.

12.6 The Client shall not be entitled to decompile, reverse engineer, amend alter or adapt the Deliverables or the Site Software in any way.

12.7 The Agency warrants to the Client that it is entitled to grant the rights set out in clause 12.1 and that it has not previously granted any conflicting rights to any other party.

13. Deliverables content

13.1 The Client shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).

13.2 The Agency shall include only Materials on the Deliverables. The Client acknowledges that the Agency has no control over any content placed on the Deliverables by Visitors and does not purport to monitor the content of the Deliverables. The Agency reserves the right to remove content from the Deliverables where it reasonably suspects such content is Inappropriate Content. The Agency shall notify the Client promptly if it becomes aware of any allegation that any content on the Deliverables may be Inappropriate Content.

13.3 The Client shall indemnify the Agency against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content.

13.4 The Agency may include the statement “Website Design by Found” on the home page of the Deliverables in a form to be agreed between the Parties.

14. Data protection

14.1 The Agency warrants that, to the extent it processes any Personal Data on behalf of the Client:

(a) it shall act only on instructions from the Client; and

(b) it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.

14.2 In this clause 14, Personal Data has the meaning given in the Data Protection Act 1998.

15. Term and termination

15.1 This agreement shall commence on the Effective Date and shall (subject to earlier termination pursuant to this clause 15) terminate automatically on Acceptance of the Deliverables, termination of Contract Services and payment of all outstanding Charges.

15.2 Either party may terminate this agreement immediately at any time by written notice to the other party if:

(a) that other party commits any material breach of its obligations under this agreement which (if remediable) is not remedied within 30 days after the service of written notice specifying the breach and requiring it to be remedied; or

(b) that other party:

(i) ceases to trade (either in whole, or as to any part or division involved in the performance of this agreement); or
(ii) becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party; or
(iii) a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court; or
(iv) the ability of that party’s creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party’s creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or
(v) any process is instituted which could lead to that party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction).

15.3 On termination of this agreement by the Agency pursuant to clause 15.2, all licences granted by the Agency under this agreement shall terminate immediately.

15.4 On expiry or termination of this agreement otherwise than on termination by the Agency pursuant to clause 15.2 the Agency shall promptly return all Materials to the Client, and shall provide to the Client one electronic copy of the Deliverables. The Agency shall provide such assistance as is reasonably requested by the Client in transferring the hosting of the Deliverables to the Client or another service provider, subject to the payment of the Agency’s expenses reasonably incurred.

15.5 Upon termination of this Agreement, the Client shall pay all outstanding, un-disputed invoices and all sums due to the Agency in relation to the Services Deliverables and Contract Services and the Client shall assume the Agency’s liability under and indemnify it for all loss and damage, charges or expenses with respect to all outstanding contracts and authorised commitments made on the Client’s behalf.

15.6 If the Agency has at the request of the Client prepared detailed plans or further statement of works or put forward ideas for future advertising in respect of which the Agency has not been remunerated, the Agency shall be entitled to receive from the Client payment on a fair compensation for work done basis.

15.7 On expiry or termination of this agreement, all provisions of this agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.

16. Change control

Any request to change the scope of the Services shall be processed in accordance with the Change Control Procedure.

17. Force majeure

17.1 The definition in this clause applies in this agreement.

Force Majeure Event: any event arising which is beyond the reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war).

17.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this agreement shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay will continue. The affected party shall take reasonable steps to mitigate the effect of the Force Majeure Event.

18. Confidentiality

18.1 The definition in this clause applies in this agreement.

Confidential Information: all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:

(a) identified as confidential at the time of disclosure; or

(b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.

18.2 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.

18.3 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.

18.4 The obligations set out in this clause 18 shall not apply to Confidential Information which the receiving party can demonstrate:

(a) is or has become publicly known other than through breach of this clause 18; or

(b) was in possession of the receiving party prior to disclosure by the other party; or

(c) was received by the receiving party from an independent third party who has full right of disclosure; or

(d) was independently developed by the receiving party; or

(e) was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.

18.5 The obligations of confidentiality in this clause 18 shall not be affected by the expiry or termination of this agreement.

19. Notices

19.1 A notice given under this agreement:

(a) shall be in writing in the English language (or be accompanied by a properly prepared translation into English);

(b) shall be sent for the attention of the person, and to the address, fax number or e-mail address given in this clause 19 (or such other person, address, fax number or e-mail address as the receiving party may have notified to the other, such notice to take effect five days from the notice being received); and

(c) shall be:
(i) delivered personally; or
(ii) sent by fax or e-mail; or
(iii) sent by pre-paid first-class post, recorded delivery or registered post; or
(iv) (if the notice is to be served or posted outside the country from which it is sent) sent by registered airmail.

19.2 A notice is deemed to have been received:

(a) if delivered personally, at the time of delivery; or

(b) in the case of fax or e-mail, at the time of transmission, provided a confirmatory copy is sent by first-class pre-paid post or by personal delivery before the end of the next Business Day; or

(c) in the case of pre-paid first class post, recorded delivery or registered post, 48 hours from the date of posting; or

(d) in the case of registered airmail, five days from the date of posting; or

(e) if deemed receipt under the previous paragraphs of this clause 19.3 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt), when business next starts in the place of receipt.

19.3 To prove service, it is sufficient to prove that the notice was transmitted by fax to the fax number or e-mail address of the relevant party or, in the case of post, that the envelope containing the notice was properly addressed and posted.

20. Publicity

All media releases, public announcements and public disclosures by either party relating to this agreement or its subject matter, including promotional or marketing material, shall be co-ordinated with the other party and approved jointly by the parties prior to release.

21. Assignment

Neither party may assign or transfer any of its rights or obligations under this agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

22. Dispute resolution procedure

22.1 If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (Dispute) then, except as expressly provided in this agreement, the parties shall follow the dispute resolution procedure set out in this clause:

(a) 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 documentation. On service of the Dispute Notice the Project Manager of the Agency and Project Manager of the Client shall attempt in good faith to resolve the Dispute;

(b) if the Project Manager of the Agency and the Project Manager of the Client are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to a Director of the Agency and a Director of the Client who shall attempt in good faith to resolve it; and

(c) if the Director of the Agency and the Director of the Client are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. The commencement of mediation will not prevent the parties commencing or continuing court proceedings.

23. Entire agreement

Except as provided in this clause 23, neither party shall have any remedy in respect of any untrue statement (whether written or oral) made to it on which it relied in entering into this agreement (Misrepresentation), and neither party shall have any liability other than pursuant to the express terms of this agreement. Nothing in this agreement shall exclude or limit either party’s liability for any Misrepresentation made fraudulently. Each party’s liability for Misrepresentation as to a fundamental matter, including as to a matter fundamental to that party’s ability to perform its obligations under this agreement, shall be subject to the limit set out in clause 11.3.

24. Third party rights

24.1 This agreement is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person other than an assignee or transferee of either party where assignment or transfer was permitted by the other party under clause 21.

25. Variation and waiver

25.1 A variation of this agreement shall be in writing and signed by or on behalf of both parties to this agreement.

25.2 A waiver of any right under this agreement is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.

25.3 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.

26. No partnership or agency

Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

27. Severance

27.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

27.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

28. Governing law and jurisdiction

28.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England.

28.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

This agreement has been entered into on the date stated at the beginning of it.

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