The following definitions and rules of interpretation apply in this Agreement: Affiliate: in relation to a party, any entity that directly or indirectly Controls, is Controlled by, oris under common Control with that party from time to time Applicable Data Protection Laws: means all applicable data protection and privacy legislation inforce from time to time in the UK, and the EU where applicable, including, where applicable, theGeneral Data Protection Regulation ((EU) 2016/679), the Data Protection Act 2018 (DPA) (andregulations made thereunder) or any successor legislation, and the UK GDPR (which has themeaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA, and allother legislation and regulatory requirements in force from time to time which apply to a partyrelating to the use of personal data (including, without limitation, the privacy of electroniccommunications). Applicable Laws: all applicable laws, statutes, regulation and codes from time to time in force. Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks inLondon are open for business. Business Hours: the period from 9.00 am to 5.00 pm in the UK on any Business Day. Control: has the meaning given in section 1124 of the Corporation Tax Act 2010 and controls, controlled and the expression change of control shall be construed accordingly. Customer Materials: all documents, information, items, software, technology and materials inany form, whether owned by the Customer or a third party, which are provided by the Customerto Adapted in connection with the Services, including but not limited to the items specified inclause 6.1(h), specified in a Statement of Work, and the Customer’s Marks. Data: any data provided, directly or indirectly, to the Customer in relation to or in connectionwith the Services; Deliverables: any output of the Services to be provided by Adapted to the Customer as specifiedin a Statement of Work and any other documents, products and materials provided by Adaptedto the Customer in relation to the Services. Effective Date: means the first day that it has been agreed for the work to start. Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business namesand domain names, rights in get-up and trade dress, goodwill and the right to sue for passing offor unfair competition, rights in designs, rights in computer software, database rights, rights touse, and protect the confidentiality of, confidential information (including know-how and trade 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. Marks: means:- (a) any trade marks, trade names, service marks, trade dress, logos, URLs and domain names; (b) any identifying slogans and symbols; (c) any abbreviation, contraction or simulation of any of the items in paragraph (a) or paragraph (b); and (d) the “look and feel”, of the relevant Party to this agreement, whether or not registered. Milestone: any date by which a part or all of the Services is to be completed, as set out in a Statement of Work. Representatives: employees, directors, officers, consultants and contractors. Services: the services which are provided by Adapted under a Statement of Work including any Deliverables and services which are incidental or ancillary to the Services. SoW Fees: the sums payable for the Services as set out in a Statement of Work. Statement of Work: a detailed plan, agreed in accordance with clause 3, describing the services to be provided by Adapted, the timetable for their performance and the related matters listed in the template statement of work set out in Error! Reference source not found. Term: the term of the Statement of Work as defined therein. Third Party Products: any third party software, platforms and/or related documentation. Third Party Agreement: any agreement or licence terms provided or imposed by the relevant third party provider of a Third Party Product. VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. 4
Unless the context otherwise requires, a reference to one gender shall include a reference to the other gender.
This Agreement shall be binding on, and enure to the benefit of, the parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns.
A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.
A reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provision.
A reference to writing or written includes email.
Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
A reference to this Agreement or to any other agreement or document is a reference to this Agreement or such other agreement or document, in each case as varied or novated from time to time.
References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.
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.
Commencement and duration
This Agreement shall commence on the Effective Date and shall continue, unless terminated earlier in accordance with clause 14 (Termination), until either party gives to the other party at least 90 days’ written notice to terminate. Such notice shall expire on the completion of all Statements of Work entered into before the date on which it is served. If there are no uncompleted Statements of Work as at the date notice to terminate is served, such notice shall terminate this Agreement with immediate effect.
The Customer may procure any of the Services by agreeing a Statement of Work with Adapted pursuant to clause 3 (Statements of Work).
Adapted shall provide the Services from the date and for the period specified in the relevant Statement of Work. 5
Statements of Work
In relation to each of the Services, Adapted shall provide the Customer with a draft Statement of Work. Both parties shall sign the draft Statement of Work when it is agreed.
Each Statement of Work shall be part of this Agreement and shall not form a separate contract to it.
In the event of any conflict between the main clauses of this Agreement and a Statement of Work, the Statement of Work shall prevail.
Any adjustments to a Statement of Work (and any resulting adjustments to project timescale and additional costs) must be agreed in writing between the parties. The Customer acknowledges and agrees that if any adjustments are made to the production requirements in a way that reduces the scope of the work, Adapted shall be entitled to require payment for any work that has been carried out prior to such alteration.
Adapted's responsibilities
Adapted shall use reasonable endeavours to provide the Services, and deliver the Deliverables to the Customer, in accordance with a Statement of Work in all material respects.
Adapted shall use reasonable endeavours to meet any performance dates specified in a Statement of Work but any such dates shall be estimates only and time for performance by Adapted shall not be of the essence of this Agreement.
Adapted shall advise the Customer of any browser, device, -OS or other compatibility requirements. Adapted is not responsible for, and shall have no liability in relation to any delays or failure to provide the Services, or any other loss or damage resulting from (i) the failure of the Customer to adhere to such compatibility requirements, (ii) transfer of data over communications networks and facilities, including the internet, or (iii) delays or failures by third party APIs and other third party systems, software, platforms and inputs on which the Services rely, and in each case the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such.
Adapted may subcontract the performance of its obligations under this Agreement.
Third Party Products
In order for Adapted to provide the Services, the Customer may be required to use Third Party Products which it already has an account for or which Adapted may advise is necessary. The Customer agrees to enter into (at its own cost) all Third Party Agreements necessary in order for the Customer to receive the Services and the Deliverables. Adapted is not liable for any Third Party Products.
Adapted shall not be responsible for the Customer’s failure to obtain any Third Party Products, or failure to have in place or comply with the terms of any Third Party Agreement, and shall not be liable for any delays or failure to provide the Services as a result of (i) the performance or non-performance of any Third Party Products or (ii) the Customer’s failure to have in place, or be in compliance with, any applicable Third Party Agreement.
The Customer acknowledges that the only warranties in relation to Third Party Products or Services incorporating such, or the supply thereof, are those given by the relevant third party provider in the applicable Third Party Agreement.
Any technical issues relating to a Third Party Product in the performance of an advertisement during testing shall be resolved between Adapted and the relevant third party provider. If for any reason the issue cannot be resolved, Adapted shall have the right to provide or require an alternative Third Party Product or solution in order to provide the best user experience.
It is the Customer’s responsibility to be aware of their chosen ad-serving preferences and any restrictions that may be in place (for example which operating systems, devices and browsers are supported). Adapted will suggest the best solution to any issues that may arise.
Any issues with Third Party Products shall not affect or delay the Customer’s approval of Deliverables.
Customer's obligations
The Customer shall:
co-operate with Adapted in all matters relating to the Services;
appoint a project manager who is responsible for the relevant project and has the authority to bind the Customer in relation to decisions and approvals in respect of such. The Customer’s project manager shall work with Adapted to ensure the project is on course to meet the agreed requirements in a timely manner and together make any reasonable adjustments if necessary;
provide Adapted with access to any of the Customer’s own internal systems orwebsites necessary to provide the Services, or any such access as is provided in aStatement of Work;
provide Adapted with any access it deems necessary (“Access”) to the Customer’s orits Representatives’ social media accounts and advertising accounts (“Accounts”) andensure the tracking is correctly installed for such and any other relevant tracking toolsin order to enable Adapted to perform the Services;
permit the Accounts to be directly managed by Adapted upon request;7
ensure any and all credit lines and payment methods for the Accounts are correctly linked and any spend limits are raised or removed as necessary prior to the date the relevant advertising spend is expected to exceed such limits;
give Adapted at least the minimum prior written notice it requires (in its sole discretion) for any adverts to go-live. Adapted shall not be liable for any delay or failure to provide the relevant Services in the event the Customer does not give the required minimum prior written notice.
provide to Adapted in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or a third party) required under a Statement of Work or otherwise reasonably required by Adapted in connection with the Services and ensure that they are accurate and complete. The Customer acknowledges that the Services may not commence until such materials are provided in full, and that if any materials are not to the correct specification then Adapted is entitled to amend any performance dates specified in a Statement of Work based on when the correct materials have been provided in their entirety;
inform Adapted prior to the commencement of the Services if it does not wish Adapted to use AI in the production of the Deliverables;
obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable Adapted to provide the Services, including in relation to the use of all Customer Materials in all cases before the date on which the Services are to start; and
comply with any additional responsibilities of the Customer as set out in the relevant Statement of Work.
The Customer acknowledges and agrees that its relationship with its own customers is the sole responsibility of the Customer and Adapted shall have no responsibility or liability in relation to the fulfilment of goods and/or services sold to, or the satisfaction of, the Customer’s customers.
Upon delivery by Adapted of any Deliverable (or part thereof), the Customer shall notify Adapted of any discrepancies with the Statement of Work as soon as reasonably possible and in any event within 5 days of delivery. If Adapted has not received any notification within 5 days, the Deliverable shall be deemed approved by the Customer.
If Adapted's performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy it may have, Adapted shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer, its affiliates and their agents, subcontractors, consultants or employees, and Adapted shall: (i) not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay; (ii) be entitled to payment of the SoW Fees despite any such prevention or delay, and (iii) be entitled to recover any additional costs, charges or losses Adapted sustains or incurs that arise directly or indirectly from such prevention or delay.
The Customer shall not use any Services or Deliverables to provide the same or similar data or services to a third party and the Customer shall not lease, license, transfer, retransmit, resell, disclose or otherwise make available any Services or Data to any person (including an Affiliate) in any form whatsoever.
Warranties
The Customer warrants and represents that:-
the Access and/or any credentials are owned by the Customer and the Customer has the right to provide the Access and/or any credentials to Adapted for the purposes described in this Agreement;
the Customer has obtained, where required, the consent of the relevant entity to provide Adapted with the Access and/or any credentials;
the Customer has obtained any other consent, right, authority or permission required to provide Adapted with the Access and/or any credentials; and
the Customer’s provision to Adapted of the Access and/or any credentials does not violate any contractual or other obligation that the Customer has to any third party.
The Customer acknowledges and agrees that it is responsible for its own obligations and liabilities to the relevant Account provider and any other third party in respect of the Access and/or any credentials. Adapted is not liable in any way whatsoever in respect of any Account provider.
The Customer shall indemnify Adapted against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) arising out of, or in connection with, any Account provider or the Customer’s breach of the foregoing warranties and representations.
Non-solicitation and employment
The Customer shall not, without the prior written consent of Adapted, at any time from the date on which any Services commence to the expiry of 12 months after the completion of such Services, solicit or entice away from Adapted or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Adapted in the provision of such Services. 9
Any consent given by Adapted in accordance with clause 8.1 shall be subject to the Customer paying to Adapted a sum equivalent to 20% of the then current annual remuneration of Adapted's employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.
Fees and payment
In consideration of the provision of the Services by Adapted, the Customer shall pay the SoW Fees.
Where the SoW Fees are calculated on a time and materials basis:
Adapted's daily fee rates for each individual person are calculated on the basis of a seven and a half-hour day, worked during Business Hours;
Adapted shall be entitled to charge an overtime rate of 1.5x the standard daily or hourly rate for any time worked by individuals whom it engages on the Services outside Business Hours.
Where the SoW Fees are calculated on a fixed price or Milestone basis, the amount of those fees shall be as set out in a Statement of Work.
The SoW Fees exclude any additional costs and expenses set out in the Statement of Work or approved by the Customer in advance from time to time, which shall be payable by the Customer monthly in arrears, following submission of an appropriate invoice.
Adapted may increase the SoW Fees on an annual basis with effect from each anniversary of the relevant Statement of Work by written notice to the Customer.
Adapted shall invoice the Customer for the SoW Fees:-
where the SoW Fees are on a time and materials basis, monthly in arrears; and
where the SoW Fees are on a fixed or Milestone basis, monthly in advance, in each case unless otherwise specified in a Statement of Work.
The Customer shall pay each invoice submitted to it by Adapted, in cleared funds, within 30 days of receipt of the invoice, to a bank account nominated in writing by Adapted from time to time, unless otherwise specified in a Statement of Work.
Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Adapted any sum due under this Agreement on the due date, Adapted shall be entitled to exercise any one or more of the following remedies:
Adapted may require the Customer to pay a fee which shall accrue each day at 0.25% of the total overdue amount of each respective invoice from the due date until payment of the overdue sum;
Adapted may require the Customer to pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%;
Adapted may suspend part or all of the Services until payment has been made in full. In the event that Adapted suspends part or all of the Services pursuant to this clause and payment is not made within 5 days from the date of suspension, Adapted may terminate this Agreement or any Statement of Work with immediate effect.
All sums payable to Adapted under this Agreement:-
are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice;
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); and
are non-refundable.
Intellectual Property Rights
In relation to the Deliverables:
Adapted and its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Customer Materials.
Adapted grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, non-sublicensable royalty-free licence to use the Deliverables for the purpose of receiving and using the Services and the Deliverables in its business.
For the avoidance of doubt any working files shall not form part of the Deliverables. Adapted and its licensors shall retain ownership of all Intellectual Property Rights in any working files and nothing in this Agreement shall be deemed to grant any right or licence in respect of such to the Customer.
In relation to the Customer Materials:
The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.
The Customer grants to Adapted a fully paid-up, non-exclusive, royalty-free, non-transferable licence to use, copy and modify the Customer Materials for the purposes of (i) providing the Services to the Customer, (ii) Adapted exercising its rights under clause 10.1 and (iii) reference and demonstration purposes, including submitting to industry competitions.
Adapted:
warrants that the receipt of the Services and the Deliverables by the Customer shall not infringe the Intellectual Property Rights of any third party;
shall not be in breach of the warranty at clause 10.3(a) to the extent the infringement arises from:
the use of Customer Materials in the development of, or the inclusion of the Customer Materials in, the Services or any Deliverable;
any modification of the Services or any Deliverable, other than by or on behalf of Adapted;
use of the Services or any Deliverable in combination with software not supplied or approved in writing by Adapted, or other than in accordance with Adapted’s instructions;
the possession, use, development, modification or maintenance of any Third Party Products or the breach of any Third Party Agreement by the Customer;
compliance with the Customer's specifications or instructions; and
compliance with any applicable laws or regulations;
may at its discretion, if receipt or use of the Services or any Deliverable becomes, or in the opinion of qualified legal counsel is likely to become, the subject of any such claim:
replace all or part of the Services or Deliverable (as the case may be) with an equivalent;
modify all or part of the Services or Deliverable (as the case may be) as necessary to avoid such claim, provided that the same (as amended) functions, appears or performs in a similar way as it did before modification; or
procure for the Customer a licence from the relevant claimant to continue using all or part of the Services or Deliverable (as the case may be).
The Customer:
warrants that the receipt and use by Adapted, its agents, subcontractors or consultants of the Customer Materials shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
shall indemnify Adapted against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) arising out of, or in connection with any claim brought against Adapted, its agents, subcontractors or consultants for infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the receipt or use of the Customer Materials. 12
Data protection
For the purposes of this clause 11, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the Applicable Data Protection Laws.
Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 11 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
The parties have determined that, for the purposes of Applicable Data Protection Laws, Adapted shall process Personal Data as processor on behalf of the Customer for the purposes set out in this Agreement.
Should the determination in clause 11.3 change, the parties shall use all reasonable endeavours to make any changes that are necessary to this clause 11.
Without prejudice to the generality of clause 11.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of Personal Data to Adapted and lawful collection of the same by Adapted for the duration and purposes of this Agreement.
Without prejudice to the generality of clause 11.2, Adapted shall, in relation to Personal Data:
process that Personal Data only on the documented instructions of the Customer unless Adapted is required by Applicable Laws to otherwise process that Personal Data (Purpose). Where Adapted is relying on Applicable Laws as the basis for processing Customer Processor Data, Adapted shall notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Provider from so notifying the Customer. Adapted shall inform the Customer if, in the opinion of Adapted, the instructions of the Customer infringe Applicable Data Protection Laws;
implement 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 (which the Customer hereby confirms it has reviewed are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected), having regard to the state of technological development and the cost of implementing any measures;
ensure that any personnel engaged and authorised by Adapted to process Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality; 13
assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to Adapted), and at the Customer's cost and written request, in responding to any request from a data subject and in ensuring the Customer's compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
notify the Customer without undue delay on becoming aware of a personal data breach involving the Personal Data;
at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless Adapted is required by Applicable Law to continue to process that Personal Data. For the purposes of this clause 11.6(f) Personal Data shall be considered deleted where it is put beyond further use by Adapted; and
maintain records to demonstrate its compliance with this clause 11, and allow for reasonable audits by the Customer or the Customer's designated auditor, for this purpose, on reasonable written notice.
The Customer provides its prior, general authorisation for Adapted to:
appoint processors to process the Personal Data, provided that Adapted:
shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on Adapted in this clause 11;
shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of Adapted; and
shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to Adapted's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify Adapted for any losses, damages, costs (including legal fees) and expenses suffered by Adapted in accommodating the objection; and
transfer Personal Data outside of the UK or the EEA (as applicable) as required for the purposes of this Agreement, provided that Adapted shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of Adapted, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time or adopted by the Commissioner from time to time (as applicable).
Confidentiality
Each party undertakes that it shall not at any time during this Agreement disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any Affiliate, except as permitted by clause 12.2(a).
Each party may disclose the other party's confidential information:
to its employees, officers, directors representatives, contractors, subcontractors or advisors who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 12; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
No party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
Limitation of liability
References to liability in this clause 13 include every kind of liability arising under or in connection with this Agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
Nothing in this clause 13 shall limit (a) the Customer's payment obligations under this Agreement or (b) the Customer's liability under any indemnity granted by it under this Agreement.
Nothing in this Agreement limits any liability which cannot legally be limited, including liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation.
Subject to clauses 13.2 and 13.2, each Party’s total liability to the other Party shall not exceed the total aggregate SoW Fees paid or payable under this Agreement.
Subject to clauses 13.2 and 13.2, and unless expressly stated otherwise in the Agreement, the Parties shall not be liable for direct or indirect loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill or indirect or consequential loss.
The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.
Termination
Without affecting any other right or remedy available to it, either party may terminate this Agreement or any Statement of Work with immediate effect by giving written notice to the other party if:
the other party commits a material breach of any term of this 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;
the other party takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause; or
the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
Without affecting any other right or remedy available to it, Adapted may terminate this Agreement or any Statement of Work with immediate effect by giving written notice to the Customer if:-
the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default 5 days after being notified in writing to make such payment; or
there is a change of control of the Customer within the meaning of section 1124 of the Corporation Tax Act 2010.
Without affecting any other right or remedy available to it, Adapted may terminate any Statement of Work on giving not less than one month's written notice to the Customer. In the event that Adapted terminates under this clause 14.3, it shall provide a pro-rata refund of any prepaid SoW Fees which are attributable to Services which have not been received by the Customer after the effective date of termination.
Without affecting any other right or remedy available to it, Adapted may terminate this Agreement or any Statement of Work under clause 9.8(b).
Obligations on termination and survival
On termination or expiry of this Agreement, the Customer shall immediately pay to Adapted all amounts due and payable. This includes any outstanding unpaid invoices, any interest and, in respect of the Services supplied or work commenced but for which no invoice has been submitted, Adapted may submit an invoice, which shall be payable immediately on receipt.
On termination or expiry of this Agreement, any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect, and termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
Force majeure
Force Majeure Event means any circumstance not within a party's reasonable control including, without limitation acts of God, flood, drought, earthquake or other natural disaster, epidemic or pandemic, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations, nuclear, chemical or biological contamination or sonic boom, any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent, collapse of buildings, fire, explosion or accident, any labour or trade dispute, strikes, industrial action or lockouts, non-performance by suppliers or subcontractors, interruption or failure of utility service.
Provided it has complied with clause 16.3, if a party is prevented, hindered or delayed in or from performing any of its obligations (other than a payment obligation) under this Agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
The Affected Party shall:
as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under this Agreement; and
use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
Marketing
Adapted shall have the right, subject to the prior approval of the Customer not to be unreasonably withheld or delayed, to use the Customer’s name and Marks (a) in a list of Adapted’s customers in any medium, or in any link to the Customer's website, and (b) in any medium for promotional, marketing and financial reporting purposes, including but not limited to promotional brochures, videotape, internet website, press releases, advertising in newspapers and/or other materials.
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 or obligations under this Agreement.
Waiver
A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
Rights and remedies
The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
Severance
If any provision or part-provision of this 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 this Agreement.
If any provision or part-provision of this Agreement is deemed deleted under clause 21.1 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.
Entire agreement
This 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 this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement. 18
No partnership or agency
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
Each party confirms it is acting on its own behalf and not for the benefit of any other person.
Third-party rights
This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
Notices
Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be:
delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
sent by email.
Any notice or communication shall be deemed to have been received:
if delivered by hand, at the time the notice is left at the proper address;
if sent by pre-paid first-class post or other next Business Day delivery services, on the Business Day after posting; or
if sent by email, at the time of transmission.
This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Counterparts
This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
Transmission of an executed counterpart of this Agreement or the executed signature page of a counterpart of this Agreement by email (in PDF, JPEG or other agreed format), or by DocuSign or other similar software, shall take effect as the transmission of an executed "wet-ink" counterpart of this Agreement.
Governing law
This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
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