1 SCOPE
1.1. This document sets out the general terms and conditions (General
Terms) which apply to all Services, Works and Software which FG
provides to the Client, as may be more specifically set out in any
Proposal (where applicable).
1.2. These General Terms explain each party’s duties to the other and
form part of the agreement for all Services, Works and Software
provided by FG.
1.3. The agreement between the parties is made up of (i) these General
Terms; (ii) any Proposal issued by FG to the Client in connection
with the relevant Works and the Services; and (iii) any other written
document either issued by FG (and expressly referring to and
incorporating itself into the Agreement) or any amendments or
supplements to the Agreement signed and agreed in writing
between the parties. Together the above documents shall constitute
and be known as the Agreement, and apply to the contract
between the Client and FG to the exclusion of any other terms that
the Client may seek to impose or incorporate, or which are implied
by trade, custom, practice or course of dealing.
1.4. When construing the meaning of the Agreement, the documents
listed in clause 1.3 shall, unless otherwise stated in any Proposal,
be interpreted in an order of priority in the event of any
inconsistency or conflict, with documents appearing earlier in the list
taking priority over documents appearing later in the list, unless
otherwise expressly stated in those documents.
1.5. The Client should print or save a copy of these General Terms for
its records.
1.6. Any quotation given by FG shall not constitute an offer and is only
valid for a period of 30 days from its date of issue.
1.7. The Agreement shall come into force once the Proposal is signed
by the Client, either electronically or by in writing, or the Client
otherwise takes steps to confirm its acceptance of the Proposal
(expressly or impliedly), including emailing to confirm acceptance or
making any payment to FG. At such point and date (the
Commencement Date) the Agreement shall be deemed binding
accordingly.
2. INTERPRETATION
2.1. The definitions and rules of interpretation in this clause 2.1 apply in
the Agreement.
Affiliate means any entity that directly or indirectly Controls, is
Controlled by, or is under common Control with another entity;
Agreement has the meaning given to it in clause 1.3;
Assigned Rights has the meaning given to it in clause 7.1;
Bespoke Software means software written by FG specifically and
exclusively for the Client as part of the Software, to the extent
identified as such in the Proposal;
Commencement Date has the meaning given in clause 1.7;
Confidential Information means information of commercial value,
in whatever form or medium, disclosed by the party to the other
party that would be regarded by a reasonable business person as
confidential, including commercial or technical know-how,
technology, information pertaining to business operations and
strategies, and information pertaining to customers, pricing and
marketing;
Control means the beneficial ownership of more than 50% of the
issued share capital of a company or the legal power to direct or
cause the direction of the general management of the company or
other entity, and controls, controlled;
Controller, Processor, Data Subject, Personal Data, Personal
Data Breach, processing and appropriate technical and
organisational measures have the meanings given in the Data
Protection Legislation;
Client means the customer identified and set out in any Proposal;
Client Equipment has the meaning given to it in clause 3.7;
Client Representative means a person duly authorised by the
Client to act on its behalf and bind it for the purposes of the
Agreement;
Data Protection Legislation means all applicable data protection
law and regulations in the United Kingdom from time to time;
FG means Four Gears Ltd, a company incorporated in Northern
Ireland under registered number NI668978, with registered address
at Reid Memorial Hall, 4a Maryville Avenue, Belfast, Northern
Ireland, BT9 7HE;
FG Standard Software means any software programs proprietary
to FG which are provided to the Client without modification (if any);
Final Works means the finalised, completed and agreed upon
Works produced by FG as set out in clause 4;
General Terms has the meaning given to it in clause 1.1;
Intellectual Property Rights means
patents, rights to inventions, copyright and
related rights, trademarks 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, 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, including the right to
sue for and recover damages for past infringements;
Licensed Rights means, unless expressly agreed otherwise in
writing by FG in the Proposal, a perpetual, non-exclusive, nontransferable, worldwide and irrevocable licence to use the Final
Works and/or Software (as applicable), subject to the terms of the
Agreement, for the advertising, marketing and promotion of the
Client’s business.
Materials means and any content, information or data, including
any text or images, which is provided by, or is to be provided by, the
Client from time to time in connection with or for incorporation in the
Services (as applicable);
Open-Source Software means any software licensed under any
form of open-source licence meeting the Open Source Initiative’s
Open Source Definition
(https://www.opensource.org/docs/definition.php) or any libraries or
code licensed from time to time under the General Public Licence
(as described by the Free Software Foundation and set out at
https://www.gnu.org/licenses/gpl.html), or anything similar, included
or used in, or in the development of, the Software, or with which the
Software is compiled or to which it is linked;
Payment Terms means the payment terms set out in the Proposal;
Permitted Purposes the meaning given in clause 10.1;
Personal Data means data subject to protection under the Data
Protection Legislation;
Price means the aggregate price for the Software, Work, and/or
Services and the granting of the Assigned Rights and/or Licensed
Rights, as specified in any Proposal;
Proposal means, as applicable: (a) any proposal document
provided to the Client by FG prior to the Commencement Date; or
(b) the relevant order and/or dispatch confirmation issued by us for
the Services, Works and Software (as applicable) based on the
order placed by you through our website (in the event of any conflict
between such order and the dispatch confirmation, the dispatch
confirmation shall take priority);
Road Map means the initial road map provided by FG, as further
detailed in the Proposal;
Services means the services provided by FG under the Agreement,
as specifically set out in any Proposal, including the Software
and/or Works (as applicable);
Software means FG Standard Software, the Third-Party Software,
the Open-Source Software, the Tools and the Bespoke Software;
Source Code means the source code of the software to which it
relates, in the language in which the software was written, together
with all related flow charts and technical documentation;
Specification means any specification for the Bespoke Software,
Services and/or Works, as specified in the Proposal;
Support means the support that is included within the Services,
where support is specified as being within the scope of Services in
the Proposal;
Third-Party Licences means any Open-Source Software Licences
relating to the Software, and any proprietary Third-Party Software
Licences;
Third-Party Software means the software programs proprietary to
third parties which are to be provided to the Client without
modification;
Tools means any tools and know-how developed, and methods
invented, by FG in the course of or as a result of carrying out the
Work, whether or not developed or invented specifically or used
exclusively to carry out the Work;
VAT means value added tax chargeable under the Value Added
Tax Act 1994 and any similar additional tax and any similar
additional tax or any other similar turnover, sales or purchase tax or
duty levied in any other jurisdiction;
Warranty Period means a period of 12 months from the provision
of the Final Works or delivery of the Services (as applicable); and
Works means all records, reports, documents, papers, drawings,
designs, transparencies, photos, graphics, logos, video, animation,
typographical arrangements and all other materials in whatever
form, including hard copy and electronic form, prepared by FG
specifically and uniquely for the Client in the provision of the
Services, excluding all Software and relevant Source Code therein.
2.2. Unless the context otherwise requires, words in the singular shall
include the plural and in the plural shall include the singular.
2.3. Any words following the terms 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 terms.
2.4. 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.
2.5. Except where a contrary intention appears, a reference to a clause,
is a reference to a clause of these General Terms, and a reference
to a section is to a relevant section of the Proposal.
2.6. Clause or section headings do not affect the interpretation of the
Agreement.
2.7. Writing or written includes e-mails sent by FG to the Client at the
email address specified for the Client in the Proposal, but not fax.
2.8. A person includes a natural person, corporate or unincorporated
body (whether or not having separate legal personality) and that
person’s personal representatives, successors or permitted assigns.
3. SERVICES, WORKS AND SOFTWARE
3.1. FG shall, subject to payment of the Price and receipt of a copy of
the Materials by the date(s) requested or required, supply the
Software, the Services and/or the Works (as applicable and in
accordance with any agreed Specification), to the Client in
accordance with and subject to the terms and conditions set out in
the Agreement.
3.2. Client agrees and accepts that any amendment requested by it to
the Software, Services, Works, Price or Proposal may result in
delays to delivery of the Services and the Final Works.
3.3. For the avoidance of doubt, FG shall only provide the Services
specifically set out in the Proposal, and any other services shall be
outside scope. For example, FG does not provide, unless expressly
agreed in the Proposal,: (a) any domain name registration services
(the Client must obtain and maintain its own domain names and
provide any necessary details and logins to FG in a timely manner);
(b) any web or mobile browser testing services (i.e. checking
relevant web browsers for obvious bugs or errors), other than those
browser testing Services specifically mentioned in the Proposal
which FG shall undertake; (c) any third party software, modules
and/or services that have not been included in the Specification.
3.4. Where Support is included in the scope of the Services, this shall
be a reasonable level of Support (subject to fair usage restrictions)
provided for the agreed term in the Proposal, unless otherwise
specified, during FG’s standard business hours (9am to 5pm UK
time on working days) via the email address specified in the
Proposal, in accordance with any support services policy rolled out
by FG from time to time.
3.5. Where specified in the Proposal, FG shall procure hosting services
on the Client’s behalf (which included in the Price) for 12 months
following the Commencement Date. On expiry of this period,
hosting services will be re-charged on the basis of the third party
hosting services provider’s charges and on the basis of the third
party hosting services provider’s standard terms from time to time.
FG shall not be liable for any issues with such hosting platforms
and shall act only as an agent procuring hosting services on the
Client’s behalf. FG reserves the right to change its hosting services
provider at any time.
3.6. FG shall provide any relevant Third-Party Software or Open-Source
Software to the Client under the standard licence terms provided by
the relevant third parties, copies of which the Client may request,
and the Client agrees to be bound to the relevant third parties by
such licence terms and to use reasonable endeavours to ensure
that its Affiliates are bound under similar obligations owed to the
relevant third parties.
3.7. Where Software built by FG is built on a third party platform, (a
TPP) Customer acknowledges and accepts that, as such TPP is a
third-party product not owned by FG, FG are not responsible for any
issues the Client has with the TPP, such as downtime or bugs in the
control panel. The Client should contact the owner of the TPP
directly with any related queries. The Client is also responsible for
obtaining and maintaining its TPP licence
directly, and these costs are not included in
the Price.
3.8. FG reserves the right to suspend the
Services and any provision of the Works
and/or Software at any time where, in FG’s reasonable opinion,
Client has been fraudulent, negligent, failed to perform or delayed in
the performing any of its obligations under the Agreement, until
such time as such act or omission (to the extent that it is deemed by
FG to be rectifiable) has been rectified, or where FG, acting
reasonably, believes that Client may be subject to any of the events
outlined in clause 16.2 below.
3.9. If delivery of the Services is delayed at the request of Client, or
because of its acts or omissions, and the delay has, in FG’s view,
resulted in an increase in cost to FG of carrying out its obligations
under the Agreement, FG may, at its reasonable discretion, notify
Client that it wishes to increase the Price to reflect such cost and of
the payment terms that will apply to such increased Price.
3.10. Where applicable, in the event that the project the subject of any
Proposal exceeds the number of hours allocated to it in the
Proposal, FG reserves the right to amend the Price, unless the
Proposal and Specification specifically outline that any extra time
shall be for FG’s account.
3.11. The Client shall be responsible for ensuring that it has obtained all
relevant third-party hardware or software (Client Equipment) which
is required for the Software to function, or to otherwise receive the
benefit of the Services and Works, as advised by FG from time to
time.
3.12. Time shall not be of the essence regarding any date for delivery by
FG of any good or service specified in the Agreement (including the
Services, Works and/or Software), notwithstanding the terms of any
Proposal, and any timeframes given by FG, including within the
Proposal, shall be reasonable estimates, which FG shall use
reasonable endeavours to work towards only.
4. FINAL WORKS
4.1. The procedure for producing the Final Works shall be as follows:
4.2. FG shall (subject to Client fulfilling all its obligations under the
Agreement) preparing a first iteration of the Works (the First
Iteration) for review by Client;
4.3. For the avoidance of doubt, any timeframes that FG may agree or
specify in relation to delivery of the Services relate to the provision
of the First Iteration;
4.4. Client shall review the First Iteration of the Works and revert with
any comments or feedback no later than one week after the date of
provision of the First Iteration;
4.5. The Price includes one minor revision to the Works, which FG shall
undertake in return for payment of the agreed Price (subject to
receipt of Client’s feedback within the periods required (as per the
above);
4.6. If no feedback is provided within the requisite time period the First
Iteration shall be deemed the Final Works;
4.7. If feedback is provided and only a single minor revision is required,
the First Iteration (as revised) shall be treated at the Final Works;
and
4.8. Where more than one minor revision or any major revision(s) is
requested by Client, FG shall notify Client of the relevant increase
to the Price and of the payment terms that will apply to such
increased Price. Such increase to Price shall be calculated by FG
on a time and materials basis at FG’s standard hourly rates. FG
reserves the right to suspend the Services until Client agrees to any
such increased Price, and to treat the First Iteration (subject to the
single minor revision) as the Final Works.
5. PAYMENT
5.1. FG shall submit invoices for the Price in accordance with the
Payment Terms. The Client shall make payment of each invoice
immediately upon receipt, or within the timeframe otherwise
provided for under the Payment Terms. Where FG has requested
an up-front payment or deposit it reserves the right not to
commence the Software, Services and/or Work until it has received
this amount. Any up-front payment or deposit is non-refundable. For
the avoidance of doubt, Client shall be obliged to pay FG regardless
of any agreement reached with its own customers, and whether its
own customers use the Software and/or Final Works or not.
5.2. If any delivery is delayed at the request of the Client, or because of
its acts or omissions, including failure to provide Materials within the
required timeframes to permit FG to provide the Services, Work
and/or Software (as applicable) within the target timeframes set out
in the Proposal, FG shall be entitled to invoice the Client for the
Services in accordance with the agreed Payment Terms
notwithstanding such Client delays. Additionally, if FG can
demonstrate that the delay has resulted in an increase in cost to FG
of carrying out its obligations under the Agreement, FG may, at its
sole discretion, notify the Client that it wishes to increase the Price
by an amount not exceeding any such demonstrable cost. FG may
invoice the Client for any additional monies that become payable in
this way, within 30 days of demonstrating the increase in costs.
5.3. The Price and all other payments under the Agreement are net of
tax. The Client shall, in addition, pay to FG the amount of any tax,
duty or assessment, including any applicable VAT, which FG is
obliged to pay and/or collect from the Client in respect of any supply
under the Agreement (other than tax on FG’s income).
5.4. If the Client fails to make any payment due to FG under the
Agreement by the due date for payment, then, without limiting FG’s
other remedies, FG may charge the Client interest a rate of 10%
per annum above the 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. The Client also specifically agrees that FG may
also recover the legal fees, costs and disbursements it incurs to
collect any unpaid invoices, and that such fees and costs are
reasonable.
5.5. Where the Software and/or Services involve purchase of external
goods and services from third parties, such cost may be invoiced by
FG to Client, prior to commencement of the Services or prior to
purchase of such external goods and services from third parties.
Where FG has invoiced Client for such costs, FG reserves the right
not to commence the Services until it has received such amount
requested.
5.6. The Price is exclusive of costs and expenses related to the
Services and/or Works, such as courier services, postage,
overseas telephone charges, colour photocopying, photography
and prints, disk or tape duplications, creation of audio/video
streaming files, travel, accommodation, subsistence and similar
items which will be invoiced to Client in accordance with the
payment terms set out in the Proposal, (or if none are specified on
completion of the Services). Any other reasonable out-of-pocket
expenses (for any cost incurred by FG on Client’s behalf, at the
request of Client, or in connection with the Services provided to
Client by FG) may be charged by FG on production of reasonable
evidence of expenditure to Client.
6. CHANGE CONTROL
6.1. The Client may, by giving written notice to FG at any time during the
term of the Agreement, request a change to the scope of the
Services (including any agreed Specification).
6.2. Within a reasonable period following receipt of such notice, FG
shall, at its standard rates then in force, prepare for the Client a
written estimate of any increase or decrease in the Price, and of
any effect that the requested change would have on any estimated
timescales the parties have been working towards.
6.3. Within 7 days of receipt of the written estimate referred to in clause
6.2, the Client shall inform FG in writing of whether or not the Client
wishes the requested change to be made. If the change is required,
FG shall not make the requested change until the parties have
agreed in writing (including by email) the terms on which such
change will be serviced specifying, in particular, any changes to the
Price.
7. INTELLECTUAL PROPERTY
7.1. Subject to the terms of the Agreement and for the consideration set
out herein, with effect from the date of payment of the full amount of
the Price in accordance with the terms of the Agreement, FG
hereby: (a) assigns to the Client all its right, title and interest in and
to the Intellectual Property Rights subsisting in any Bespoke
Software, all user documentation in respect of such Bespoke
Software, with the exception of FG’s own logos or generic
information or details contained therein provided to other customers
of FG, (the Assigned Rights), including the right (to the extent held
by FG) to bring, make, oppose, defend, appeal proceedings, claims
or actions and obtain relief (and to retain any damages recovered)
in respect of any infringement, or any other cause of action arising
from ownership, of any of the Assigned Rights whether occurring
before, on, or after the date of the Agreement; and (b) grants to
Client the Licensed Rights to the Software and Final Works (as
applicable and with the exception of FG’s own logos or generic
information or details contained therein
provided to other customers of FG),
including the right (to the extent held by FG)
to bring, make, oppose, defend, appeal
proceedings, claims or actions and obtain
relief (and to retain any damages recovered) in respect of any
infringement, or any other cause of action arising from ownership,
of any of the Licensed Rights whether occurring before, on, or after
the date of the Agreement.
7.2. Client acknowledges that the Licensed Rights shall not include the
IPR subsisting in any additional Works supplied by FG, other than
the Final Works, which shall remain the sole property of FG or its
licensors. Client shall not be permitted to use same without
permission having been granted in writing by FG.
7.3. If an amendment to the Licensed Rights is required by the Client,
FG may, in its sole discretion, detail the amended scope of the
Licensed Rights in the Special Conditions section of the Proposal
(rather than producing a new Proposal).
7.4. Client acknowledges that the Licensed Rights may be subject to
usage limitations, and any Licensed Rights are licensed for use by
Client only in the format finalised by FG, and for the purpose and in
the context in which they were originally provided. Client further
acknowledges that they may not be modified, re-used, or redistributed in any way or form (in whole or in part) without the
express written consent of FG and/or its licensors. Client may
request in writing permission from FG to use Licensed Rights (for
which FG holds the IPR) in forms other than as outlined above, and
FG may, at its discretion, grant such permission. Such permission
must be obtained in writing before any of the Licensed Rights may
be so used.
7.5. FG acknowledges that all IPR which subsist in or arise in
connection with the Materials belong to Client and/or its third-party
licensors. By supplying data, information and Materials to FG,
Client declares that it holds the requisite IPR for same. By
supplying same to FG, Client grants FG permission to use same
freely in the provision of the Services and development of the
Works, unless stated otherwise.
7.6. Should FG supply any Works believing them not to infringe the IPR
of any third party, but it subsequently emerges that such Works are
in fact subject to usage limitations, Client agrees to allow FG to
remove and/or replace such Works for alternative Works and
agrees that it shall have no right to claim against FG regarding
same.
7.7. Otherwise, all Intellectual Property Rights in the Software belongs
and shall belong to FG or the relevant third-party owners (as the
case may be), and the Client shall have no rights in or to the
Software other than the right to use it in accordance with the terms
of this agreement.
7.8. The Client shall comply with the Third-Party Licences and shall
indemnify and hold FG harmless against any loss of damage which
it may suffer or incur as a result of the Client’s breach of such terms
howsoever arising. FG may treat the Client’s breach of any ThirdParty Licence as a breach of the Agreement.
7.9. Client agrees to grant FG a perpetual, unlimited, assignable and
transferable licence to display the Final Works on FG’s own website
or on other media for demonstration purposes and to otherwise use
same in FG’s own publicity.
8. SUPPLIER PERSONNEL
8.1. During the term of the Agreement and for a period of six months
thereafter neither party shall, without the prior written consent of the
other, solicit, or permit any Affiliate to solicit, the employment or
services (other than via the other party) of any person who is
employed by the other party in the course of developing or
supplying the Software or the Works or any part of them.
8.2. Any person with whom FG corresponds on behalf of Client shall be
deemed to be a Client Representative for the purposes of the
Agreement.
9. CUSTOMER’S OBLIGATIONS
9.1. The Client shall: (a) co-operate with FG in all matters relating to the
Services (c) provide FG, its employees, agents, consultants and
subcontractors, with access to the Client’s premises, office
accommodation and other facilities as reasonably required by FG;
(d) be solely responsible for providing FG with all data, information
or Materials (including any graphic design, photographs, copyright
text or illustrations) required in order to develop the Software,
Services and/or Works (as applicable) to the Specification, and
provide the Services and for obtaining all necessary rights and
permissions and making all necessary payments for same (save
only to the extent that FG has specifically committed to providing
these as part of the Services within the Proposal); (e) be solely
responsible for the accuracy and completeness of all such data,
information and Materials provided; (f) obtain and maintain all
necessary licences, permissions and consents which may be
required before the date on which the Services and/or provision of
Products is to start; (g) keep and maintain all materials, equipment,
documents and other property of FG (FG Materials) at the Client’s
premises in safe custody at its own risk, maintain FG Materials in
good condition until returned to FG, and not dispose of or use FG
Materials other than in accordance with FG’s written instructions or
authorisation; (h) transmit and store all data, information and
Materials in accordance with all applicable laws. The Client shall
further ensure that the applicable data, information and Materials do
not infringe any applicable laws, regulations (including without
limitation and where relevant any guidelines in place from time to
time issued by the Advertising Standards Authority (ASA) and/or
the Competition and Markets Authority (CMA) in connection with
marketing communications, and any other relevant law, rule,
guidelines, or regulation applicable to the display or publication of
advertisements or marketing communications as issued or in place
from time) or third party rights (such as material which is obscene,
indecent, pornographic, seditious, offensive, defamatory, obscene,
threatening, liable to incite racial hatred, menacing, blasphemous or
in breach of any third party Intellectual Property Rights)
(Inappropriate Content) and that the Works shall not be used in a
manner by the Client, its licensees, agents, contractors and/or
representatives which would have any adverse effect on FG,
including but not limited to any use that could be considered
derogatory, discriminatory, violent, racist, offensive or otherwise
illegal (Inappropriate Use). FG will be the sole arbiter as to what
constitutes Inappropriate Content and/or Inappropriate Use. The
Client shall indemnify FG and its third-party sub-contractors against
all damages, losses and expenses arising as a result of: (i) any
action or claim that the Materials constitute Inappropriate Content;
and (ii) any action or claim relating to actual or alleged
Inappropriate Use of the Works; and (i) not disassemble,
decompile, reverse translate or in any other manner decode the
Software, except as permitted by law.
9.2. Client acknowledges that, on its receipt of the Software and/or Final
Works (as applicable), it shall be solely responsible for the
safekeeping, storage and backups of the Software and/or Final
Works (as applicable). FG does not offer any guarantee for future
storage or retrieval of archive files, but may (in its sole discretion)
use reasonable commercial efforts to provide the Client with an
additional copy of the Final Works and/or Software (as applicable),
provided that the Client makes this request within six (6) months of
the delivery of the Final Works and/or Software (as applicable). If
Client requests that the Final Works and/or Software (as applicable)
are provided in another format, or requires additional assistance
with data transition, FG shall use reasonable commercial
endeavours to assist, subject to applicable additional fees.
9.3. The Client warrants that the Client, its licensees, agents,
contractors and/or representatives, shall have all due regard to
FG’s commercial standing and reputation, and that such individuals
and/or entities have not and will not do anything (by act or
omission) which may: (a) bring the standing or reputation of FG into
disrepute: (b) attract adverse publicity to FG; or (c) harm customer
confidence in FG; including making any defamatory, misleading or
untrue comments about FG to any third parties.
9.4. The Client acknowledges that FG shall make no effort to validate
any data, information or Materials provided by the Client for content,
correctness or usability. If any such data, information or Materials
is/are untrue, inaccurate, not current, or incomplete, without limiting
any other remedies, FG has the right to suspend the provision of
Services and/or terminate the Agreement with immediate effect
giving notice in writing to the Client and FG, its agents, suppliers
and sub-contractors have the right to recover from the Client any
costs or losses incurred as a direct or indirect result of the
inaccurate or incomplete information.
9.5. Use of any Materials provided by FG to the Client is at the Client’s
risk and FG is not liable for the accuracy or quality of information
obtained.
9.6. Any Materials (including but not limited to images or footage)
provided by Client must be of a quality suitable for use and FG will
not be held responsible for the quality of any images or footage
provided by Client and incorporated into the Works which Client
later deems to be unacceptable.
9.7. The Client shall provide appropriate security
arrangements and insurance for any filming
outside of Northern Ireland for which FG
provides crew or equipment and such
arrangements shall be notified to FG in
writing in advance of travel.
9.8. Where the Works are required to conform to certain laws, Client
shall be responsible for ensuring such compliance (e.g. in relation
to advertising or food hygiene standards). FG shall not be held
responsible for any oversight or error in ensuring such compliance,
nor will it be liable for re-publishing such Works or other additional
costs.
10. CONFIDENTIALITY AND PUBLICITY
10.1. Each party undertakes not to use the Confidential Information
otherwise than in the exercise and performance of its rights and
obligations under the Agreement (Permitted Purposes).
10.2. In relation to the Client’s Confidential Information: (a) FG shall treat
as confidential all Confidential Information of the Client supplied
under the Agreement. FG shall not divulge any such Confidential
Information to any person, except to its own employees and then
only to those employees who need to know it for the Permitted
Purposes. FG shall ensure that its employees are aware of, and
comply with, this clause 10; and (b) FG may provide any
subcontractor with such of the Client’s Confidential Information as it
needs to know for the Permitted Purposes, provided that such
sub­contractor has first entered into a written obligation of
confidentiality owed to FG (which FG shall ensure is adhered to).
10.3. In relation to FG’s Confidential Information: (a) the Client shall treat
as confidential all Confidential Information of FG contained or
embodied in the Software or Documentation, or otherwise supplied
to the Client during the performance of the Agreement; (b) the
Client shall not, without the prior written consent of FG, divulge any
part of FG’s Confidential Information to any person other than: (i)
the Client’s Representative; and (ii) other employees of the Client or
any of its Affiliates who need to know it for the Permitted Purposes;
and (c) the Client undertakes to ensure that the persons mentioned
in clause 10.3 are made aware, before the disclosure of any part of
FG’s Confidential Information, that the same is confidential and that
they owe a duty of confidence to the Client in terms similar to
clause 10.3 (which the Client shall ensure is adhered to).
10.4. The restrictions imposed by clause 10.1, clause 10.2 and clause
10.3 shall not apply to the disclosure of any Confidential Information
which: (a) is now in or hereafter comes into the public domain
otherwise than as a result of a breach of this clause 10; (b) before
any negotiations or discussions leading to the Agreement was
already known by the receiving party (or, in the case of the Client,
any of its Affiliates) and was obtained or acquired in circumstances
under which the receiving party was (or, in the case of the Client,
the Client and its Affiliates were) not bound by any form of
confidentiality obligation; or (b) is required by law or regulation to be
disclosed to any person who is authorised by law or regulation to
receive the same (after consultation, if practicable, with the
disclosing party to limit disclosure to such authorised person to the
extent necessary).
10.5. Each party shall notify the other party if any of its staff connected
with the provision or receipt of the Services becomes aware of any
unauthorised disclosure of any Confidential Information and shall
afford reasonable assistance to the other party, at that other party’s
reasonable cost, in connection with any enforcement proceedings
which that other party may elect to bring against any person.
10.6. Nothing in the Agreement shall prevent either party from using any
Tools, knowledge of which is contained in the unaided memory of
such party’s personnel developed or disclosed under the
Agreement, provided that in doing so such party does not breach its
obligations of confidentiality under this clause 10 or breach any
Intellectual Property Rights of the other party. An individual’s
memory is only “unaided” with respect to any information if the
individual has not retained a copy of the information and has not
intentionally memorised that information other than is required to
perform the Services.
10.7. The provisions of clause 10.2 notwithstanding, FG reserves the
right to publicise the fact of this Agreement, the identity of the
Client, any Client testimonials, and details concerning the nature of
the Software, Services and Works provided for, inter alia, marketing
and promotional purposes.
11. DATA PROTECTION AND DATA MIGRATION
11.1. Both parties will comply with all applicable requirements of the Data
Protection Legislation. This clause is in addition to, and does not
relieve, remove or replace, a party’s obligations or rights under the
Data Protection Legislation.
11.2. Client undertakes that it has obtained all necessary consents to
supply the Materials to FG for use in accordance with the terms of
this Agreement and that it will at all times comply with relevant Data
Protection Law, including its obligations related to any personal
data in respect of which it is data controller.
11.3. Client acknowledges that FG will be acting as a data processor,
rather than as a data controller (as such terms are defined in
relevant Data Protection Legislation), in respect of all such data
processing activities which FG carries out under the Agreement, as
set out in FG’s published privacy policy from time to time.
11.4. The parties acknowledge that for the purposes of the Data
Protection Legislation, the Client is the Controller and FG is the
Processor.
11.5. Without prejudice to the generality of clause 11.1, the Client will
ensure that it has all necessary appropriate consents and notices in
place to enable lawful transfer of the Personal Data to FG for the
duration and purposes of the Agreement.
11.6. Without prejudice to the generality of clause 11.1, FG shall, in
relation to any Personal Data processed in connection with the
performance by FG of its obligations under the Agreement: (a)
process that Personal Data only on the documented written
instructions of the Client, for the purposes of fulfilling its obligations
under the Agreement and/or in accordance with FG’s documented
privacy policy unless FG is required by Applicable Laws to
otherwise process that Personal Data. Where FG is relying on
Applicable Laws as the basis for processing Personal Data, FG
shall promptly notify the Client of this before performing the
processing required by the Applicable Laws unless those Applicable
Laws prohibit FG from so notifying the Client; (b) ensure that it has
in place appropriate technical and organisational measures to
protect against unauthorised or unlawful processing of Personal
Data and against accidental loss or destruction of, or damage to,
Personal Data; (c) ensure that all personnel who have access to
and/or process Personal Data are obliged to keep the Personal
Data confidential; and (d) not transfer any Personal Data outside of
the UK or EEA unless the prior written consent of the Client has
been obtained and the following conditions are fulfilled: (i) the Client
or FG has provided appropriate safeguards in relation to the
transfer; (ii) the data subject has enforceable rights and effective
legal remedies; (iii) FG complies with its obligations under the Data
Protection Legislation by providing an adequate level of protection
to any Personal Data that is transferred; and (iv) FG complies with
reasonable instructions notified to it in advance by the Client with
respect to the processing of the Personal Data; (e) 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; (f) notify the Client without
undue delay on becoming aware of a Personal Data Breach; (g) 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
(h) maintain complete and accurate records and information to
demonstrate its compliance with this clause.
11.7. The Client consents to FG appointing the categories of third-party
processor specified in FG’s documented privacy policy or specified
in the Agreement from time to time. FG confirms that it has entered
or (as the case may be) will enter with the third-party processor into
a written agreement substantially on that third party’s standard
terms of business and in either case which FG confirms reflect and
will continue to reflect the requirements of the Data Protection
Legislation. As between the Client and FG, FG shall remain fully
liable for all acts or omissions of any third-party processor
appointed by it pursuant to this clause.
11.8. Where applicable, FG shall use reasonable efforts to ensure the
accurate migration of any data but gives no warranties as to the
completeness or accuracy of such migration. The Client shall be
responsible for checking the accuracy and completeness of the
migrated data and shall promptly give sufficient details to FG of any
inaccuracies or omissions in order to permit FG to correct them. If
such data includes Personal Data, FG shall return all copies of such
Personal Data to the Client on completion of the data migration
process.
12. WARRANTIES
12.1. FG warrants that: (a) it shall provide any
Services and deliver the Works and
Services, using reasonable skill and care
and in accordance with the terms of the
Agreement; and (b) during the Warranty Period, the FG Standard
Software, the Bespoke Software and the Final Works will perform in
all material respects in accordance with the relevant Specification.
12.2. The sole remedy for breach of the warranty under clause 12.1 shall
be correction or re-performance of defective Services by FG within
a reasonable time from notification by the Client of the relevant
breach. The Client shall provide all information as may be
reasonably necessary to assist FG in resolving any breach
including, without limitation, sufficient information to enable FG to
re-create any alleged defect in the Software.
12.3. The Services and Works are provided on an “as-is” basis and “as
available” basis, and the express terms of the Agreement are in lieu
of all other express or implied warranties, conditions, undertakings,
terms and obligations implied by statute, common law, trade usage,
course of dealing or otherwise, including implied warranties or
conditions of satisfactory quality and fitness for a particular purpose,
conditions, all of which are hereby excluded to the fullest extent
permitted by law. In particular, FG denies any implied or express
representation that the Software will be fit: (i) to operate in
conjunction with any hardware items or software products other
than with those that are identified in any Proposal as being
compatible with the Software; or (ii) to operate uninterrupted or
error-free. FG does not warrant or guarantee that it will be able to
rectify all defects, nor that any defect which does not materially
affect the Client’s operations using the Software can or will be
corrected.
12.4. Any unauthorised modifications, use or improper installation of the
Software by, or on behalf of, the Client shall render FG’s warranties
and obligations under the Agreement null and void.
12.5. FG shall not be obliged to rectify any particular defect if attempts to
rectify such defect other than normal recovery or diagnostic
procedures have been made by the Client’s personnel or third
parties without the permission of FG.
12.6. The Client acknowledges that the only warranties in relation to the
Third-Party Software or Open-Source Software, or the supply
thereof, are those contained in the relevant Third-Party Licences,
and that these are otherwise provided on an “as is” basis.
12.7. The Client acknowledges that it has assessed for itself the
suitability of the Software and Works for its requirements. FG does
not warrant that the Software and Works will be suitable for such
requirements, nor that any use of the Software and Works will be
uninterrupted or error free or will achieve specific outcomes or
results. FG may also recommend third party platforms, service
provider or products from time to time, but gives no warranties
about such products, platforms or services or their relevant
providers. Client should assess for itself whether they properly meet
its requirements and will enter into separate contracts
independently of FG.
12.8. FG does not accept any responsibility for protection of the Software
against security breaches, any loss of data resulting from delays,
non-deliveries, mis-deliveries or service interruptions caused by its
third parties’ negligence or the Client’s errors or omissions.
12.9. Each party warrants that it has full capacity and authority, and all
necessary licences, permits and consents to enter into and perform
the Agreement and that those signing the Agreement are duly
authorised to bind the party for whom they sign.
13. INTELLECTUAL PROPERTY RIGHTS WARRANTIES AND
INDEMNITY
13.1. If any third party makes a claim (Claim) against the Client that the
Bespoke Software or FG Standard Software (or their related Works)
infringe its UK Intellectual Property Rights, or if FG believes that the
Software or Works infringe or may infringe the Intellectual Property
Rights of any third party (in which case FG shall have the option to
take these steps) FG shall, at its option, either (a) modify the
relevant Software or Works so that they cease to be infringing; (b)
obtain a licence to allow for their continued use, or (c) if these
alternatives are, in FG’s opinion, not commercially reasonable, FG
shall terminate this Agreement and refund the Prices (or part
thereof) the Client has paid (less an amount in consideration of the
Client’s use prior to such termination), provided that the Client: (i)
as soon as reasonably practicable, gives written notice of the Claim
to FG, specifying the nature of the Claim in reasonable detail; (ii)
does not make any admission of liability, agreement or compromise
in relation to the Claim without the prior written consent of FG; (iii)
gives FG and its professional advisers access at reasonable times
(on reasonable prior notice) to its premises and its officers,
directors, employees, agents, representatives or advisers, and to
any relevant assets, accounts, documents and records within the
power or control of the Client, so as to enable FG and its
professional advisers to examine them and to take copies (at FG’s
expense) for the purpose of assessing the Claim. Nothing in this
clause shall restrict or limit the Client’s general obligation at law to
mitigate a loss it may suffer or incur as a result of an event that may
give rise to a claim under indemnity.
13.2. For the avoidance of doubt, the steps outlined in clause 13.1 shall
not apply, and FG shall not have any liability for any claim of
infringement of Intellectual Property Rights, where the infringement
in question is caused or contributed to by: (a) the possession, use,
development, modification or maintenance of the relevant Software
or Works (or any part thereof) by the Client other than in
accordance with the terms of this Agreement, (b) use of the relevant
Software in combination with any hardware or software not supplied
or approved by FG if the infringement would have been avoided by
the use of the relevant Software or Works not so combined or used;
(c) use of any version of the Software other than the latest version
supplied by FG, if such claim could have been avoided by the use
of such supplied version; or (d) where the claim for infringement
arises in respect of a feature of the Software which was specified or
requested by the Client.
13.3. Clause 13.1 provides the Client with its exclusive remedy for any
Intellectual Property Rights infringement claims or damages
connected with or relevant to the subject matter of the Agreement.
13.4. The Client hereby warrants that it owns the Intellectual Property
Rights in the Materials, or that, where such Intellectual Property
Rights are held by third parties, the Client is permitted to use and
supply the Materials to FG for the purposes specified in this
Agreement, and that the Client is entitled to use the Software for the
purposes contemplated by this Agreement, and that in so doing, or
in fulfilling any of their obligations or enforcing any of their rights
under this Agreement neither the Client nor FG will in any way
infringe such third party Intellectual Property Rights.
13.5. If any third party makes a claim against FG (or any of its third-party
sub-contractors) that the Materials infringe its Intellectual Property
Rights, Client shall indemnify and hold harmless FG and/or any
such sub-contractor against all losses, claims, liabilities arising in
connection with such allegation. To obtain this protection, FG must:
(a) notify Client promptly in reasonable detail in writing, no later
than 30 days after it receives notice of the claim, or sooner if
required by applicable law; (b) give Client sole control of the
defence and any settlement negotiations, subject to the Client
providing security in respect of any such claim to FG’s reasonable
satisfaction, and giving FG a right to participate in defence of any
claim with a counsel of its own choosing; and (c) give Client the
information, authority and assistance it reasonably requires to
defend against or settle the claim.
14. LIMITATION OF LIABILITY – THE CUSTOMER’S ATTENTION IS
PARTICULARLY DRAWN TO THIS CLAUSE
14.1. Neither party excludes or limits liability to the other party for: (a)
fraud or fraudulent misrepresentation; (b) death or personal injury
caused by negligence; or (c) any matter for which it would be
unlawful for the parties to exclude liability.
14.2. Subject to clause 14.1, FG shall not in any circumstances be liable
whether in contract, tort (including for negligence and breach of
statutory duty howsoever arising), misrepresentation (whether
innocent or negligent), restitution or otherwise, for: (a) any loss
(whether direct or indirect) of profits, business, business
opportunities, revenue, turnover, reputation or goodwill; (b) any loss
or corruption (whether direct or indirect) of data or information; (c)
loss (whether direct or indirect) of anticipated savings or wasted
expenditure (including management time); or (d) any loss or liability
(whether direct or indirect) under or in relation to any other contract.
14.3. Subject to clause 14.1 and 14.2, FG’s total aggregate liability in
contract, tort (including negligence and breach of statutory duty
howsoever arising), misrepresentation (whether innocent or
negligent), restitution or otherwise, arising in connection with the
performance or contemplated performance of the Agreement or any
collateral contract shall be limited to total charges paid by the Client
to FG during the 12-month period immediately before the date on
which the cause of action first arose.
15. ASSIGNMENT AND SUBCONTRACTING
15.1. The Client may not assign, sub-license, subcontract, mortgage or otherwise transfer or
dispose of this Agreement or any of its rights
or obligations under it without the prior
written consent of FG, such consent not to
be unreasonably withheld or delayed. FG shall notify the Client of
any assignment, sub-contract or other transfer of FG’s rights and
obligations hereunder but shall not be required to obtain the
consent of the Client to the same.
15.2. Each party confirms it is acting on its own behalf and not for the
benefit of any other person.
16. TERM AND TERMINATION
16.1. The Agreement shall commence on the Commencement Date and
shall continue, unless terminated earlier in accordance with this
clause 16, until the Services have been completed and paid for in
full, or until the termination date provided for in the Proposal
(whichever is later).
16.2. Without prejudice to any rights that have accrued under the
Agreement or any of its rights or remedies, either party may at any
time terminate the Agreement with immediate effect by giving
written notice to the other party if: (a) the other party fails to pay any
amount due under the Agreement on the due date for payment and
remains in default not less than 14 days after being notified in
writing to make such payment; (b) the other party commits a
material breach of any term of the Agreement (other than failure to
pay any amounts due under the Agreement) and (if such breach is
remediable) fails to remedy that breach within a period of 30 days
after being notified in writing to do so; (c) the other party repeatedly
breaches any of the terms of the Agreement in such a manner as to
reasonably justify the opinion that its conduct is inconsistent with it
having the intention or ability to give effect to the terms of the
Agreement; (d) 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 is deemed unable to pay its debts
within the meaning of Article 129 of the Insolvency (Northern
Ireland) Order 1989; (e) 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 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; (f) a petition is filed, a notice is given, a resolution is passed,
or an order is made, for or on connection with the winding up of that
other party 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; (g) 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; (h) the holder of a qualifying floating charge over the
assets of that other party has become entitled to appoint or has
appointed an administrative receiver; (i) 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; (j) 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;
(k) 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
16.2(d) to clause 16.2(i) (inclusive); (l) the other party suspends or
ceases, or threatens to suspend or cease, to carry on all or a
substantial part of its business; or (m) any warranty given in clause
12 is found to be untrue or misleading.
16.3. FG reserves the right to suspend the Services and provision of the
Works or Software at any time where, in FG’s reasonable opinion,
the Client has been fraudulent, negligent, failed to perform or
delayed in the performing any of its obligations under the
Agreement, until such time as such act or omission (to the extent
that it is deemed by FG to be rectifiable) has been rectified, or
where FG, acting reasonably, believes that the Client may be
subject to any of the events outlined in clause 16.2 above.
16.4. Other than as set out in the Agreement, neither party shall have any
further obligation to the other under the Agreement after its
termination.
16.5. Any provision of the Agreement which expressly or by implication is
intended to come into or continue in force on or after termination of
the Agreement, including but not limited to clauses 1.7, 7, 10 to 14
(inclusive), and 16, shall remain in full force and effect.
16.6. 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, including the right to claim damages in
respect of any breach of the agreement which existed at or before
the date of termination.
16.7. Notwithstanding its obligations in this clause 16, if a party is
required by any law, regulation, or government or regulatory body to
retain any documents or materials containing the other party’s
Confidential Information, it shall notify the other party in writing of
such retention, giving details of the documents and/or materials that
it must retain.
16.8. On termination or expiry of the Agreement for any reason, each
party shall as soon as reasonably practicable: (a) return, destroy or
permanently erase (as directed in writing by the other party) any
documents, handbooks, memory drives or other information or data
provided to it by the other party containing, reflecting, incorporating
or based on Confidential Information belonging to the other party. If
required by the other party, it shall provide written evidence no later
than 7 days’ after termination of the Agreement that these have
been destroyed and that it has not retained any copies of them
(except for one copy that it may use for audit purposes only and
subject to the confidentiality obligations in clause 10), provided that
the Client may retain copies of any Supplier Confidential
Information incorporated into the Software or to the extent
necessary to allow it to make full use of the Services and any
Software; (b) permanently delete any proprietary software
belonging to the other party and not the subject of a current licence
granted by the other party (other than the Software) from its IT
network and hard disks or other storage means associated with any
computer equipment owned or controlled by the other party. Each
party shall provide written confirmation no later than 14 days after
termination of the Agreement that this software has been deleted;
(c) return all of the other party’s equipment and materials, failing
which, the other party may enter the relevant premises and take
possession of them, provided, regarding the Client’s rights under
this clause 16.8, that the Client has (if appropriate) paid FG in full
for such equipment and materials. Until these are returned or
repossessed, the party in possession shall be solely responsible for
their safe-keeping.
16.9. On termination or expiry of the Agreement for any reason, the Client
shall immediately pay any outstanding unpaid invoices and interest
due to FG. FG shall submit invoices for any Services or Works that
it has supplied, but for which no invoice has been submitted, and
the Client shall pay these invoices immediately on receipt.
17. GENERAL CLAUSES
17.1. No failure or delay by a party to exercise any right or remedy
provided under the Agreement or by law shall constitute a waiver of
that or any other right or remedy, nor shall it preclude or restrict the
further exercise of that or any other right or remedy. No single or
partial exercise of such right or remedy shall preclude or restrict the
further exercise of that or any other right or remedy.
17.2. Except as expressly provided in the Agreement, the rights and
remedies provided under the Agreement are in addition to, and not
exclusive of, any rights or remedies provided by law.
17.3. 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. Each party agrees that it 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 based on any statement in
the Agreement.
17.4. No variation of the Agreement shall be effective unless it is in
writing and signed by the parties (or their authorised
representatives). Every time FG supplies Works or Services to a
Client, the terms applying to the Agreement between the parties,
shall be as outlined in the relevant Proposal and in the version of
these General Terms in force at the time of the signing of such
Proposal.
17.5. 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 partprovision 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 Agreement. If
any provision or part-provision of the
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.
17.6. No person other than a party to the Agreement shall have any rights
to enforce any term of the Agreement.
17.7. Nothing in the 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, or authorise
any party to make or enter into any commitments for or on behalf of
any other party.
17.8. 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, including
delays caused by pandemic, labour issues, or default of subcontractors. For the avoidance of doubt, lack of funds or inability to
access funds shall not be deemed outside a party’s reasonable
control. In such circumstances, the affected party shall be entitled to
a reasonable extension of the time for performing such obligations.
17.9. Any notice required to be given under the Agreement, shall be in
writing and shall be delivered personally, or sent by pre-paid firstclass post or recorded delivery, to each party required to receive
the notice as set out in the Proposal or as otherwise specified by
the relevant party by notice in writing to each other party. FG may
also provide notice by email to the Client as specified in clause 2.7.
Any notice shall be deemed to have been received: (a) if delivered
personally, when left at the address and for the contact referred to
in this clause; (b) if sent by pre-paid first-class post or recorded
delivery, at 9.00 am on the second working day (any day other than
a Saturday, Sunday or bank or public holiday in England or
Northern Ireland) after posting; or (c) in the case of email, at the
time of transmission to the relevant Client email address (whether
or not rejected at the Client end). The provisions of this clause shall
not apply to the service of any proceedings or other documents in
any legal action.
17.10. The Agreement and any dispute or claim arising out of or in
connection with it or its subject matter or formation (including noncontractual disputes or claims) shall be governed by and construed
in accordance with the law of Northern Ireland and subject to the
exclusive jurisdiction of the courts of Northern Ireland.