1. Definitions and interpretation
In the Agreement:
1.1 the following terms shal hav te following meanings unless the context otherwise require;
Adlib: Adlib Audio Limited incorporated and registered in England and Wales with company number 03555097.
Adlib Materials: has the meaning given in clause 8.1.9.
Agreement: these Goods and/or Services Terms and Conditions together with the Quotation and any document referred to in these Goods and/or Services Terms and Conditions or the Quotation.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Calls Off/Calling Off: the act of the Customer submitting a written request to Adlib to take delivery or collection of the Goods (or a portion of the Goods) purchased under this Agreement.
Commencement Date: the date of Adlib’s acceptance (given in accordance with clause 2.5) of the Customer’s offer to enter into the Agreement (made in accordance with clause 2.4).
Customer: the business or organisation who purchases the Goods and/or Services from Adlib.
Customer Default: any act or omission by the Customer, or anyone acting on its behalf, or failure by the Customer (or anyone acting on its behalf) to perform any relevant obligation under the Agreement including those set out in clause 8.
Delivery: has the meaning given in clause 3.6.
Delivery Location: the premises at which the Customer shall take possession of the Goods, as set out in the Quotation or as otherwise agreed by the parties in writing.
- Dispute: has the meaning given in clause 17.1.
- Dispute Notice: has the meaning given in clause 17.1.1.
- Fees: the Goods Fees and/or the Services Fees.
Good Industry Practice: the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a skilled and experienced person engaged in services similar to the Services.
Goods: the goods (or any part of them) set out in the Quotation.
Goods Fees: the fees to be paid by the Customer to Adlib for the Goods, as set out in the Quotation or as otherwise agreed by the parties in writing.
Goods Specification: any specification for the Goods provided by Adlib from time to time.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral 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, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Quotation: the written document which Adlib provides to the Customer containing specific information relating to the particular goods to be purchased by the Customer from Adlib and/or the services to be provided by Adlib to the Customer.
Services: the services supplied by Adlib to the Customer as set out in the Services Description.
Services Description: an itemised breakdown of the services, set out in the Quotation or as otherwise agreed by the parties in writing, that Adlib shall provide to the Customer.
Services Fees: the fees to be paid by the Customer to Adlib for the Services, as agreed by the parties in writing or as set out in, or calculated in accordance with the rates outlined in, the Quotation.
Site: the premises at which the Services shall be provided, as set out in the Quotation or as otherwise agreed by the parties in writing.
Snags: any defects, whether apparent or actual, related to the results of the Services (which shall include defects in the services provided in order to install the Goods), that are reported by the Customer to Adlib following Adlib’s completion of the Services (or a particular part of the Services).
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
Variation: any variation to the Agreement including to any of the Services.
Variation Note: has the meaning given in clause 16.7.
VAT: value added tax or any equivalent tax chargeable in the UK;
1.2 clause headings shall not affect the interpretation of these Goods and/or Services Terms and Conditions;
1.3 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns;
1.4 a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established;
1.5 unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular;
1.6 unless the context otherwise requires, a reference to one gender shall include a reference to any other gender;
1.7 unless expressly provided otherwise in the Agreement, reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time;
1.8 unless expressly provided otherwise in the Agreement, reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provisions;
1.9 a reference to writing or written includes email;
1.10 any obligation on a party not to do something includes an obligation not to allow that thing to be done;
1.11 a reference to the Agreement or to any other agreement or document is a reference to the Agreement or such other agreement or document, in each case as varied from time to time;
1.12 references to clauses are to the clauses of these Goods and/or Services Terms and Conditions;
1.13 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; and
1.14 in the event of a conflict between any provision set out in these Goods and/or Services Terms and Conditions and any provision set out in the Quotation, then the provision set out in the Quotation shall take precedence over any provision set out in these Goods and/or Services Terms and Conditions;
2. Basis of Agreement
2.1 The terms of the Agreement apply to the exclusion of any terms and conditions submitted, proposed or stipulated by the Customer in whatever form and at whatever time. These Goods and/or Services Terms and Conditions apply to the provision of the Goods and/or the Services by Adlib to the Customer under the Agreement.
2.2 Save as expressly provided in the Agreement, the Agreement shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the parties preceding the Commencement Date that in any way relates to the subject matter of the Agreement and to the exclusion of any representations not expressly stated in the Agreement except for any fraudulent misrepresentations or any misrepresentation as to a fundamental matter. Each party acknowledges that it has not entered into the Agreement based on any representation that is not expressly incorporated into the Agreement.
2.3 The Agreement constitutes the whole agreement and understanding of the parties as to the subject matter of the Agreement and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to in the Agreement.
2.4 The Customer providing Adlib with the Customer’s written confirmation of the details set out in the Quotation (previously submitted to it by Adlib) shall be deemed to be an offer by the Customer to purchase the Goods and/or Services, from Adlib, subject to the provisions of the Agreement.
2.5 The Agreement shall be legally formed and the parties shall be legally bound when Adlib, following its receipt of the Customer’s written confirmation pursuant to clause 2.4, either confirms its acceptance of the Quotation (and the Customer’s written confirmation) in writing to the Customer, or performs some form of affirmative action which indicates its intention to accept the Customer’s offer and enter into the Agreement, such as providing the Goods and/or Services to the Customer. Such action by Adlib shall be considered to be its acceptance of the offer made by the Customer pursuant to clause 2.4.
2.6 Any purchase order provided by the Customer to Adlib (and any terms and conditions attached or referred to in it) for Adlib’s provision of the Goods and/or Services, shall be purely for the Customer’s administrative purposes and shall not, under any circumstances and no matter on how many occasions they are provided by the Customer, form part of the Agreement whatsoever.
2.7 Any samples, drawings, descriptive matter or advertising issued by Adlib and any descriptions of the Goods or illustrations or descriptions of the Services are issued or published for the sole purpose of giving an approximate idea of the Goods and Services described in them. They shall not form part of the Agreement nor have any contractual force.
3. Goods
3.1 The Goods shall be as described in any applicable Goods Specification.
3.2 Adlib reserves the right to amend any Goods Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Goods, provided that Adlib shall notify the Customer in the event of any such amendment.
3.3 The Customer shall be responsible for the disposal of any packaging materials associated with the Goods unless Adlib requests to collect such packing materials from the Customer.
3.4 Adlib, as stipulated in the Quotation or otherwise agreed in writing, shall deliver the Goods to the Delivery Location at any time after:
3.4.1 Adlib notifies the Customer that the Goods are ready for delivery; or
3.4.1 the Customer Calls Off the Goods.
3.5 Notwithstanding clause 3.4, if the parties agree in writing, the Customer may collect the Goods from Adlib’s premises (or at such other location as may be agreed in writing) within:
3.5.1 (three) Business Days of Adlib notifying the Customer that the Goods are ready for collection pursuant to clause 3.4.1; or
3.5.2 (five) Business Days where the Customer Calls Off the Goods pursuant to clause 3.4.2.
3.6 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location or prior to loading by the Customer at any other location agreed in accordance with clause 3.5 (Delivery).
3.7 Any dates quoted for delivery of the Goods, in the Quotation or otherwise, are approximate only, and time of delivery is not of the essence.
3.8 If Adlib fails to deliver the Goods, its liability for such failure shall be limited in accordance with clause 12.
3.9 If the Customer fails to receive delivery of (or, where agreed in accordance with clause 3.5, collect) the Goods within:
3.9.1 (three) Business Days of Adlib notifying the Customer that the Goods are available to the Customer (either on delivery or collection); or
3.9.2 (five) Business Days of the Customer Calling of the Goods for delivery or collection;
then except where such failure or delay is caused by Adlib’s failure to comply with its obligations under the Agreement, delivery of the Goods shall be deemed to have been completed at 9.00 am on the 3rd (third) Business Day following the day on which Adlib notified the Customer pursuant to clause 3.4.1 or at 9.00 am the 5th (fifth) Business Day following the day on which the Customer makes a request pursuant to clause 3.4.2 (as applicable).
3.10 Adlib shall store the Goods until the Customer takes actual physical possession of the Goods and shall be entitled to charge the Customer for all related costs and expenses (including insurance) from:
3.10.1 the point that Delivery is deemed to have taken place in accordance with clause 3.9.1 where Goods are to be delivered pursuant to clause 3.4.1; or
3.10.2 the Commencement Date or the date that Adlib first takes actual physical possession of the Goods following the parties entering into the Agreement (whichever is later) where Goods are to be delivered pursuant to clause 3.4.2 and where payment for those Goods is to be made in accordance with clause 9.5.2.2.
3.11 If the Customer fails to receive delivery of (or, where agreed in accordance with clause 3.5, collect) the Goods within 10 (ten) Business Days of Adlib notifying the Customer that the Goods are available to the Customer (either on delivery or collection), then Adlib may, without prejudice to its rights or remedies under the Agreement, terminate the Agreement and resell or otherwise dispose of part or all of the Goods and, if applicable, charge the Customer for any shortfall below the Goods Fees received by Adlib when re-selling or disposing of the Goods.
3.12 Adlib may deliver the Goods by instalments, which may be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment and the potential liability of Adlib to the Customer shall be limited to the value of such instalment.
4. Quality of Goods
4.1 The Customer acknowledges that Adlib is not the manufacturer of the Goods and so the Customer may only receive any such warranty or other benefit as Adlib has received from the relevant manufacturer.
4.2 Whilst Adlib shall not seek to register any applicable manufacturer warranties, Adlib shall use reasonable endeavours to assign the benefit of any such warranties in their entirety to the Customer where and if possible. The Customer acknowledges and agrees that the applicable manufacturer of any such Goods may determine that the applicable warranty period shall run from Adlib’s initial receipt of the Goods rather than the date upon which they are first used by the Customer.
4.3 The Goods supplied under the Agreement shall, at the point of Delivery, be free from apparent and obvious defects in design, material and workmanship.
4.4 The Customer shall be deemed to have accepted the Goods if it has not reported to Adlib in writing that the Goods are in breach of clause 4.3 within 5 (five) Business Days following Delivery.
4.5 The Customer may reject any Goods delivered to it that do not comply with clause 4.3, provided that:
4.5.1 notice of rejection is given to Adlib in accordance with clause 4.4; and
4.5.2 none of the events listed in clause 4.6 apply.
4.6 Adlib shall not be liable for any Goods that fail to comply with clause 4.3 in any of the following events:
4.6.1 the Customer makes any further use of those Goods after giving notice in accordance with clause 4.4;
4.6.2 the defect arises because the Customer failed to follow Adlib’s (or the relevant manufacturer’s) oral or written instructions for the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
4.6.3 the Customer alters or repairs the Goods without Adlib’s written consent; or
4.6.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
4.7 If the Customer rejects Goods under clause 4.5 then Adlib, at its discretion, shall:
4.7.1 repair or replace the rejected Goods; or
4.7.2 repay the applicable Goods Fees in respect of the rejected Goods.
4.8 Once Adlib has complied with clause 4.7, it shall have no further liability to the Customer for the rejected Goods’ failure to comply with clause 4.3.
5. Title and Risk
5.1 The risk in the Goods shall pass to the Customer on Delivery.
5.2 Title to the Goods shall not pass to the Customer until the earlier of:
5.2.1 where the Goods are to be paid for pursuant to:
5.2.1.1. clause 9.5.1 and clause 9.5.2.2, Adlib receives payment in full (in cash or cleared funds) for the Goods as well as any other goods that the Customer has agreed to purchase from Adlib in respect of which payment has become due (in which case title to the Goods shall pass at the time of payment of all such sums); or
5.2.1.2 clause 9.5.2.1, upon Delivery of the Goods; and
5.2.2 the Customer reselling the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 5.4.
5.3 Until title to the Goods has passed to the Customer, the Customer shall:
5.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Adlib’s property;
5.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
5.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Adlib’s behalf from the date of Delivery;
5.3.4 notify Adlib immediately if it becomes subject to any of the events listed in clause 13.2.2; and
5.3.5 give Adlib such information as Adlib may reasonably require from time to time relating to:
5.3.5.1 the Goods; and
5.3.5.2 the ongoing financial position of the Customer.
5.4 The Customer may not, without Adlib’s express written consent, resell the Goods before Adlib receives payment for the Goods. Where such Goods are resold before Adlib receives payment for the Goods:
5.4.1. it does so as principal and not as Adlib’s agent; and
5.4.2 title to the Goods shall pass from Adlib to the Customer immediately before the time at which resale by the Customer occurs.
5.5 At any time before title to the Goods passes to the Customer, Adlib may require the Customer to deliver up all Goods in its possession and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them. Where the Goods are being stored at premises owned or controlled by a third party, the Customer shall procure the right for Adlib to enter any such premises in order for Adlib to exercise its rights under the Agreement (including this clause 5.5)
6. Supply of Services
6.1 Adlib shall supply the Services to the Customer in accordance with the Services Description in all material respects.
6.2 Adlib shall use all reasonable endeavours to meet any performance dates for the Services specified in the Quotation or otherwise agreed, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
6.3 Adlib reserves the right to amend the Services Description if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, provided that Adlib shall notify the Customer in the event of any such amendment.
6.4 Adlib shall:
6.4.1 ensure that the personnel used to provide the Services are appropriately qualified and/or have the necessary experience to provide such Services;
6.4.2 provide the Services in accordance with Good Industry Practice;
6.4.3 where necessary or where agreed, provide the Services from or at the Site;
6.4.4 provide reasonable assistance and cooperate with the Customer and any other third parties engaged by the Customer in relation to the Services or the matter to which the Services relate; and
6.4.5 comply with all applicable laws and regulations in relation to the performance of its obligations under the Agreement.
7. Defective Services
7.1 If the Customer, following completion of the Services (or a particular part of the Services) (including installation of the Goods) becomes aware of a Snag, the Customer shall promptly report any such Snag to Adlib either via email or telephone and provided that:
7.1.1 the Customer has reported the Snag within 5 (five) Business Days of the Services (or the particular part of the Services) being completed; and
7.1.2 the Snag has not occurred because of the acts or omissions of any party except for Adlib;
7.1.3 then Adlib shall remedy such Snag in accordance with clause 7.2.
7.2 Where the Customer suspects that a Snag is a physical defect in, or caused by, the workmanship provided by Adlib:
7.2.1 the Customer shall, when reporting such Snag to Adlib in accordance with clause 7.1.1, provide photographs clearly showing the apparent physical defect;
7.2.2 where requested by Adlib, the Customer shall provide Adlib with access to the Site, the Customer’s premises and/or the Customer’s computer systems (where and as applicable) so that Adlib may investigate the Snag; and
7.2.3 subject to the Customer complying with clause 7.1.1, clause 7.2.1 and clause 7.2.2 (as applicable), and provided Adlib determines (in its absolute discretion) that such a Snag is a physical defect in, or caused by, the workmanship provided by Adlib, Adlib shall remedy such Snag including, where necessary, attending the Site or the Customer’s premises (where applicable) in order to remedy such Snag.
Once Adlib has complied with this clause 7.2, it shall have no further liability to the Customer for the applicable Snag.
7.3 Where the Snag is anything other than a physical defect in, or caused by, the workmanship provided by Adlib, then Adlib may (at its discretion and subject to charging additional fees to the Customer) attempt to remedy the Snag. In the first instance Adlib shall seek to remedy the Snag via providing instructions to the Customer via telephone, email, remotely accessing any systems installed by Adlib or via accessing the Customer’s computer systems. The Customer acknowledges and agrees that Adlib shall only attend the Site or the Customer’s premises in person where it agrees to remedy such Snag and only if the Snag is not capable of being resolved without such attendance.
8. Customer's Obligations
8.1 The Customer shall:
8.1.1 ensure that the terms of the Quotation, and any other information it provides to Adlib, are complete and accurate;
8.1.2 co-operate with Adlib in all matters relating to the Goods and Services (as applicable);
8.1.3 provide Adlib, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, the Site, office accommodation and other facilities as reasonably required by Adlib to provide the Goods and Services (including car/vehicle parking where required by Adlib), as applicable;
8.1.4 provide Adlib with such information and materials as Adlib may reasonably require in order to supply the Goods and Services (as applicable), and ensure that such information is complete and accurate in all material respects;
8.1.5 prepare the Customer’s premises and/or the Site for the supply of the Goods and Services (as applicable);
8.1.6 take such steps as may be necessary to ensure that each Site is at all times safe and without risk to health when it is being used for the Services;
8.1.7 obtain and maintain all necessary licences, permissions and consents which may be required for the Goods and Services before Delivery (in respect of Goods) or the date on which the Services are to start (in respect of Services);
8.1.8 comply with all applicable laws, including health and safety laws; and
8.1.9 keep all materials, equipment, documents and other property of Adlib’s (Adlib Materials) at the Customer’s premises in safe custody and at its own risk, maintain the Adlib Materials in good condition until returned to Adlib, and not dispose of or use the Adlib Materials other than in accordance with Adlib’s written instructions or authorisation.
8.2 If Adlib’s performance of any of its obligations under the Agreement is prevented or delayed by a Customer Default:
8.2.1 without limiting or affecting any other right or remedy available to it, Adlib shall have the right to suspend performance of its obligations under the Agreement until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of such obligations;
8.2.2 Adlib shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Adlib’s failure or delay to perform any of its obligations pursuant to clause 8.2.1; and
8.2.3 the Customer shall reimburse Adlib on written demand for any costs or losses sustained or incurred by Adlib directly or indirectly from the Customer Default.
9. Fees
9.1 In consideration of Adlib’s provision of the Goods and/or Services to the Customer, the Customer shall pay the Fees to Adlib.
9.2 Adlib may, where applicable, charge the Customer for reasonable expenses incurred by its personnel in the course of performing the Services, including for the reasonable accommodation, travel, telephone, parking, food, subsistence, out-of-pocket, any other expenses incurred in the course of performing the Services.
9.3 The Fees are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Customer at the rate and in the manner from time to time prescribed by law.
9.4 In respect of the Services Fees, Adlib shall invoice the Customer periodically at intervals that Adlib, acting reasonably, considers appropriate.
9.5 In respect of the Goods Fees:
9.5.1 where delivery is to take place pursuant to clause 3.4.1, Adlib shall invoice the Customer upon Delivery of the Goods, or Delivery of each instalment of the Goods (where the Goods are delivered in instalments);
9.5.2 where delivery is to take place pursuant to clause 3.4.2, Adlib, as stipulated in the Quotation or otherwise agreed in writing, shall invoice the Customer:
9.5.2.1 upon the Commencement Date or the date that Adlib first takes actual physical possession of the Goods following the parties entering into this agreement (whichever is later); or
9.5.2.2 upon Delivery of the Goods, or Delivery of each instalment of the Goods (where the Goods are delivered in instalments)
9.6 The Customer shall pay the Fees set out in each invoice in accordance with any credit terms agreed by the parties in writing and/or as set out in the Quotation. Where no such credit terms have been agreed or are not set out, or referenced to, in the Quotation, the Fees shall be payable immediately upon the Customer’s receipt of Adlib’s invoice.
9.7 No payment shall be considered paid until Adlib has received it in cleared funds in full. The Customer acknowledges and agrees that additional charges may also be payable if the Customer wishes to pay via credit or debit-card.
9.8 All amounts due under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9.9 Payment shall be in the currency in force in England from time to time or such other currency as Adlib may stipulate from time to time.
9.10 If any invoiced sums are not paid by the Customer in accordance with clause 1.1, Adlib may (without prejudice to any other right or remedy available to Adlib whether under the Agreement or by any statute, regulation or byelaw) do any or all of the following;
9.10.1 charge interest and other costs on the overdue amount due but unpaid at the annual rate of interest set under Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly;
9.10.2 recover all its costs, expenses and charges (including any legal and debt collection fees and costs) incurred by Adlib as a result of seeking to collect such late or non-payment;
9.10.3 if applicable, suspend its provision of the Services to the Customer; and/or
9.10.4 immediately recover possession of the Goods.
10. Intellectual Property Rights
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Adlib. To the extent that any such Intellectual Property Rights are determined, upon their creation, to automatically vest in the Customer, the Customer shall:
10.1.1 assign to Adlib, with full title guarantee and free from all third party rights, such Intellectual Property Rights; and
10.1.2 promptly at Adlib’s request, do (or procure to be done) all such further acts and things, and the execution of all such other documents, as Adlib may from time to time require for the purpose of securing for Adlib all right, title and interest in and to the Intellectual Property Rights assigned to Adlib in accordance with clause 10.1.1
10.2 The Customer grants Adlib a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to Adlib for the term of the Agreement for the purpose of providing the Services to the Customer.
10.3 For the avoidance of doubt, where the Goods and/or Services provided by Adlib relate to a particular project, Adlib shall be entitled, to take photographs and record video footage of how its provision of the Goods and/or Services relate to and/or facilitated the Customer’s ability to complete the project, so that Adlib may use such photographs and/or video footage for its own promotional purposes.
11. Data Protection
11.1 The following definitions apply in this clause 11:
11.1.1 Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
11.1.2 Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time quire in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.
11.2 The parties understand and acknowledge that they are independent Controllers in relation to their respective obligations under the Agreement.
11.3 Each party shall, at all times, comply with all such Data Protection Legislation and any regulations made under it and in particular with the data protection principles set out in the Data Protection Legislation and with all relevant guidance notes issued from time to time by the Information Commissioner’s Office. Any material breach of the Data Protection Legislation by one party shall, if not remedied within 10 (ten) Business Days of written notice from the other party, gives grounds to the other party to terminate the Agreement with immediate effect.
11.4 Each party warrants to the other that the Personal Data it shares in relation to its respective activities and obligations under the Agreement can be lawfully used or disclosed to and by the other in the manner anticipated by the Agreement.
11.5 Where Personal Data is supplied to one party by the other party, the party in receipt of such Personal Data will ensure that it is only used for purposes lawfully authorised and in accordance with the terms of the Agreement.
11.6 Each party shall be responsible for responding to and resolving:
11.6.1 any complaint or request to exercise their rights from a data subject; or
11.6.2 any correspondence with the Information Commissioner’s Office,
11.6.3 in relation to processing it undertakes or in connection with the Agreement.
11.7 Each party shall maintain all Personal Data received pursuant to the Agreement in accordance with the Data Protection Legislation and shall ensure that it has appropriate technical and organisational measures in place to protect against the unauthorised or unlawful processing of Personal Data relating to customers and against accidental loss or destruction of, or damage to this Personal Data.
11.8 Each party shall ensure that the fair processing notices and (as required under Data Protection Legislation) any requests for consent are sufficient in scope to enable it to process the Personal Data as required in order to obtain the benefit of its rights and fulfil its obligations under the Agreement in accordance with the Data Protection Legislation.
11.9 In so far as one party (the Processing Party) processes any Personal Data on behalf of the other party (the Controlling Party), it shall:
11.9.1 act only on the written instructions of the other party (unless required by law to act without such instructions);
11.9.2 ensure that all employees, agents and/or contractors processing Personal Data are subject to a duty of confidentiality no less onerous than that set out in the Agreement;
11.9.3 take all appropriate technical and organisational measures to ensure the security of all processing in accordance with Article 32 of the UK GDPR;
11.9.4 notify the other party promptly, without undue delay, in the event of a Personal Data Breach for which the severity of such carries a likelihood of risk to data subjects’ rights and freedoms to include but emotional, physical, financial or other economic disadvantage, a “Notifiable Breach” or where the other party identifies that such breach has been caused by the other party;
11.9.5 employ a data protection officer if so required in accordance with Article 37 of the UK GDPR;
11.9.6 reasonably assist the other party in meeting its data protection obligations in relation to the security of processing, the notification of Personal Data Breaches and data protection impact assessments;
11.9.7 submit to audits and inspections providing the other party with all reasonable assistance and information necessary to ensure that both parties meet their obligations as set out in Article 28 of the UK GDPR;
11.9.8 provide full co-operation with supervisory authorities such as the Information Commissioner's Office in compliance with Article 31 of the UK GDPR where applicable; and
11.9.9 at the choice of the Controlling Party, delete or return all Personal Data to the other party upon termination of the Agreement.
11.10 Where the Processing Party processes Personal Data of the Controlling Party under the Agreement, the Controlling Party hereby consents to the Processing Party appointing any other third party to process the Personal Data on behalf of the Controlling Party provided that the Processing Party imposes obligations upon the third party relating to the processing activity that are at least equivalent to those contained in this clause 11. Each party shall notify the other of any sub-processors engaged and where a sub-processor fails to fulfil its data protection obligations, the Processing Party shall remain fully liable to the Controlling Party for the performance of the sub-processor's obligations.
11.11 If either party receives:
11.11.1 a complaint or a request to exercise their rights, from a data subject; or
11.11.2 any correspondence with the Information Commissioner’s Office;
in relation to the processing undertaken by the other party, it shall refer such complaint, request or correspondence to the other party and each party shall provide such co-operation, information and assistance as is reasonably requested in relation to any complaint, request or other correspondence in relation to the Personal Data.
11.12 Each party shall maintain all registrations under the Data Protection Legislation required for the performance of its obligations under the Agreement.
11.13 Neither party shall transfer any Personal Data relating to the Agreement, outside the UK or European Economic Area without the prior consent of the other party and where consent is provided, in accordance with the requirements of the Data Protection Legislation.
12. Limitations of Liabiity
12.1 This clause 12 prevails over all of the Agreement and sets forth Adlib’s entire liability, and the sole and exclusive remedies of the Customer, in respect of:
12.1.1 performance, non-performance, purported performance, delay in performance or mis-performance of the Agreement or any services in connection with the Agreement; or
12.1.2 otherwise in relation to the Agreement or entering into the Agreement.
12.2 Neither party excludes nor limits its liability for:
12.2.1 its fraud;
12.2.2 death or personal injury caused by its negligence;
12.2.3 any breach of the obligations implied by Section 2 of the Supply of Goods and Services Act 1982 or section 12 of the Supply of Goods Act 1979; or
12.2.4 any other liability which cannot be excluded or limited by applicable law.
12.3 Adlib’s total liability to the Customer arising as a result of Adlib’s failure to deliver Goods, or deliver Goods that comply with clause 4.3, shall be limited to the price of such Goods that Adlib fails to deliver or which do not comply with clause 4.3.
12.4 Adlib’s total liability to the Customer arising as a result of Adlib’s failure to provide the Services materially in accordance with clause 6, shall be limited to the Services Fees. For the avoidance of doubt this shall not include Adlib’s liability for Snags which shall be limited in accordance with clause 7.2.
12.5 Subject to clause 12.2, clause 12.3 (relating to its provision of Goods) and clause 12.4 (relating to its provision of Services), Adlib’s total aggregate liability to the Customer for any other losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the total Fees paid by the Customer to Adlib under the Agreement.
12.6 Subject to clause 12.2, Adlib shall not have any liability under the Agreement for any:
12.6.1 loss of profits;
12.6.2 loss of wasted expenditure;
12.6.3 loss of sales or business;
12.6.4loss of agreements or contracts;
12.6.5 loss of anticipated savings;
12.6.6 loss of use or corruption of software, data or information;
12.6.7 loss of or damage to goodwill; and
12.6.8 indirect or consequential loss;
whether or not such losses were reasonably foreseeable or that the Customer or its agents or contractors had been advised of the possibility of such losses being incurred. For the avoidance of doubt, clauses 12.5.1 to 12.5.7 (inclusive) apply whether such losses are direct, indirect, consequential or otherwise.
12.7 Subject to clause 12.2, all implied terms and conditions as to the quality or performance of the Goods or Services provided under the Agreement are, to the fullest extent permitted by law, excluded from the Agreement including any terms and conditions implied by section 13 of the Sale of Goods Act 1979.
13. Term and Termination
13.1 The Agreement shall commence on the Commencement Date and shall continue until the latest of:
13.1.1 completion of the Services;
13.1.2 the Delivery of the Goods; or
13.1.3 the payment of all outstanding Fees by the Customer to Adlib;
when it shall automatically terminate without notice.
13.2 Without affecting any other right or remedy available to it, Adlib may terminate the Agreement with immediate effect by giving notice to the Customer if:
13.2.1 the Customer is in material breach of any of its obligations under the Agreement, and, where such material breach is capable of remedy, the Customer fails to remedy such breach within a period of 7 (seven) days of being notified of such breach by Adlib;
13.2.2 the Customer gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or an order is made or a resolution is passed for the winding-up of the Customer or an administration order is made or an administrator is appointed to manage the affairs, business and property of the Customer or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the Customer’s assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator or which entitle the court to make a winding-up or bankruptcy order or the Customer takes or suffers any similar or analogous action in consequence of debt in any jurisdiction; and/or
13.2.3 the Customer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
13.3 On termination of the Agreement, however caused, the Customer shall pay to Adlib on demand any outstanding Fees and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 9.9.
13.4 In the event that the Agreement is terminated before Delivery of the Goods, Adlib may resell or otherwise dispose of the Goods and, if applicable, charge the Customer for any shortfall below the price of the Goods Fees. Adlib reserves the right to demand the Customer pay to Adlib a sum equal to the whole of the Goods Fees that would have been payable if termination had not occurred, which shall be reimbursed (in whole or in part) by Adlib to the Customer upon Adlib’s resale of the Goods.
13.5 In the event that the Agreement is terminated before the completion of the Services, the Customer shall pay to Adlib on demand a sum equal to the whole of the Services Fees that would (but for the termination) have been payable if the Agreement had continued, unless Adlib determines, at its absolute discretion, to a pro-rata reduction of the payable Services Fees to account for the part of the Services that Adlib will no longer perform (but any such refund shall under no circumstances include non-refundable third party fees incurred by Adlib prior to such termination).
13.6 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination of the Agreement shall remain in full force and effect.
13.7 Termination 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.
14. Force majeure
14.1 Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances and subject to clause 14.2, the time for performance of a party’s obligations shall be extended by a period equivalent to the period during which performance of such obligations have been delayed or failed to be performed.
14.2 If the delayed or non-performed obligations pursuant to clause 14.1 relate to Adlib’s provision of Services on a date previously agreed by the parties (in writing or within the Quotation), the time for performance of such obligations may be extended beyond a period equivalent to the period of such non-performance and until the end of any date for the performance of such Services (such revised date to be agreed in writing by the parties). Where Adlib is unable to perform the Services on any revised date reasonably requested by the Customer, the Customer may terminate this Agreement provided that Adlib shall have no liability to the Customer in the event of such termination.
15 Notices
15.1 Any notice given to a party under or in connection with the Agreement shall be in writing and shall be:
15.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
15.1.2 sent by email to the address specified in the Quotation.
15.2 Any notice shall be deemed to have been received:
15.2.1 if delivered by hand, at the time the notice is left at the proper address;
15.2.2 if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the 2nd (second) Business Day after posting; or
15.2.3 if sent by email, at the time of transmission.
15.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
16. Variation
16.1 In the event that Adlib or the Customer needs to vary the Agreement (whether a provision of these Goods and/or Services Terms and Conditions, or a part of the Quotation), the Customer may at any time request, and Adlib may at any time recommend, a Variation only in accordance with this clause 16.
16.2 Until such time as a Variation is made in accordance with this clause 16, Adlib and the Customer shall, unless otherwise agreed in writing, continue to perform the Agreement in compliance with its terms prior to such Variation.
16.3 Any discussions which may take place between the parties in connection with a request or recommendation before the authorisation of a resultant Variation shall be conducted in good faith and be without prejudice to the rights of either party.
16.4 Discussion between the parties concerning a Variation shall result in any one of the following:
16.4.1 no further action being taken; or
16.4.2 a request to vary the Agreement by the Customer; or
16.4.3 a recommendation to vary the Agreement by Adlib.
16.5 Where Adlib receives a written request for a Variation from the Customer, Adlib shall, unless otherwise agreed between the parties, promptly submit a draft Variation Note to the Customer.
16.6 A recommendation of a Variation by Adlib shall be submitted by Adlib directly to the Customer in the form of a draft Variation Note. The Customer shall give its response to the draft Variation Note within 5 (five) Business Days of receipt.
16.7 A “Variation Note” means the written record of a Variation agreed or to be agreed by the parties and shall contain:
16.7.1 the title of the Variation;
16.7.2 the originator and date of the request or recommendation for the Variation;
16.7.3 the reason for the Variation;
16.7.4 full details of the Variation, including any specifications;
16.7.5 the impact on Fees, if any, of the Variation;
16.7.6 a timetable for implementation, together with any proposals for acceptance of the Variation;
16.7.7 a schedule of payments if appropriate;
16.7.8 details of the likely impact, if any, of the Variation on other aspects of the Agreement including:
16.7.8.1 the timetable for the provision of the Variation;
16.7.8.2 the personnel to be provided;
16.7.8.3 the Fees; and
16.7.8.4 other contractual issues;
16.7.9 the date of expiry of validity of the Variation Note; and
16.7.10 provision for signature by the parties.
16.8 For each Variation Note submitted to the Customer by Adlib, the Customer will, within the period of the validity of the Variation Note, evaluate the Variation Note and, as appropriate:
16.8.1 request further information; or
16.8.2 arrange for a copy of the Variation Note to be signed by or on behalf of the Customer and returned to Adlib; or
16.8.3 notify Adlib of the rejection of the Variation Note.
16.9 A Variation Note agreed in writing by the parties shall constitute a binding variation to the Agreement.
17. Dispute Resolution
17.1 If a dispute arises out of or in connection with the Agreement or the performance, validity or enforceability of it (Dispute), then the parties shall follow the procedure set out in this clause 17:
17.1.1 either party shall give to the other party written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the individual who manages Adlib’s supply of the Goods and/or Services and the individual who manages the Customer’s receipt of the Goods and/or Services shall attempt in good faith to resolve the Dispute;
17.1.2 if the individuals described in clause 17.1.1 are for any reason unable to resolve the Dispute within 14 (fourteen) days of service of the Dispute Notice, the Dispute shall be referred to a director of Adlib’s and a director of the Customer’s, who shall attempt in good faith to resolve it; and
17.1.3 if for any reason the Dispute is not resolved by each parties respective directors within a further 14 (fourteen) days following escalation to a director of each party in accordance with clause 17.1.2 (and therefore not resolved within a total of 28 (twenty eight) days), the Dispute shall be referred to and finally resolved by in accordance with clause 18.7.
17.2 No party may commence any court proceedings in relation to the whole or part of any Dispute until it has attempted to settle the Dispute in accordance with clause 17.1 and/or where the other party has failed to participate in any dispute resolution discussion, provided that the right to issue proceedings is not prejudiced by a delay.
18. General
18.1 Assignment and other dealings. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement without the prior written consent of Adlib.
18.2 No partnership or agency. Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
18.3 Third party rights. Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
18.4 Waiver. 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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
18.5 Rights and remedies. 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.
18.6 Severance
18.6.1 If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement.
18.6.2 If any provision or part-provision of the Agreement is deemed deleted under clause 18.6.1, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
18.7 Governing law and jurisdiction
18.7.1 The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England.
18.7.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.
