Terms and Conditions
By entering into a Statement of Work, the client acknowledges and accepts these Terms and Conditions.
Parties
(1) Momentum ITSMA, legal entity as specified in the Statement of Work (Momentum); and
(2) The client as identified in the relevant Statement of Work (Client).
BACKGROUND
(A) Momentum is in the business of providing the Services.
(B) The Client wishes to obtain, and Momentum wishes to provide the Services on the terms set out in this agreement and the relevant SOW.
Agreed terms
1. Interpretation
1.1 The following definitions and rules of interpretation apply in this agreement:
Applicable Data Protection Laws: means:
a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Momentum is subject, which relates to the protection of personal data.
Applicable Laws: all applicable laws, statutes, regulation and codes from time to time in force.
Services: the services as set out in each applicable Statement of Work.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm GMT on any Business Day.
Change Order: has the meaning given in clause 7.
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.
Client's Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Client, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Works including any such items specified in a Statement of Work.
Client Materials: all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to Momentum in connection with the Works, including the items provided pursuant to clause 5.1(c).
Client Personal Data: any personal data which Momentum processes in connection with this agreement, in the capacity of a processor on behalf of the Client.
Deliverables: any output of the Works to be provided by Momentum to the Client as specified in a Statement of Work and any other documents, products and materials provided by Momentum to the Client in relation to the Works (excluding Momentum's Equipment).
EU GDPR: means the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade-marks and service marks, business names and domain names, rights in get-up, 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.
Momentum's Equipment: any equipment, including tools, systems, cabling or facilities, provided by Momentum to the Client and used directly or indirectly in the supply of the Works, including any such items specified in a Statement of Work but excluding any such items which are the subject of a separate agreement between the parties under which title passes to the Client.
Momentum Personal Data: any personal data that Momentum processes in connection with this agreement, in the capacity of a controller.
Milestone: a date by which a part or all of the Works is to be completed, as set out in a Statement of Work.
SoW Charges: the sums payable for the Works 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 Momentum, the timetable for their performance and the related matters.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
VAT: value added tax chargeable in the UK.
Works: the Available Services which are provided by Momentum under a Statement of Work, including services which are incidental or ancillary to the Works.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 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.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other gender.
1.8 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.
1.9 A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.
1.10 A reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provision.
1.11 A reference to writing or written excludes fax but includes email.
1.12 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.13 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.
1.14 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.
1.15 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Commencement and duration
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 This agreement shall commence on the date on which it is issued to the Client and shall continue, unless terminated earlier in accordance with clause 13 (Termination), until either party gives to the other party written notice to terminate. Such notice shall be served no earlier than first anniversary of the commencement of this agreement and shall expire on the completion of all Statements of Work entered into before the date on which it is served.
2.3 If there are no uncompleted Statements of Work as at the date notice to terminate is served under clause 2.1 such notice shall terminate this agreement with immediate effect.
2.4 The parties shall not enter into any further Statements of Work after the date on which notice to terminate is served under clause 2.1.
2.5 The Client may procure any of the Services by agreeing a Statement of Work with Momentum pursuant to clause 3 (Statements of Work).
2.6 Momentum shall provide the Works from the date specified in the relevant Statement of Work.
3. Statements of Work
3.1 Each Statement of Work shall be agreed in the following manner:
(a) following receipt of the information requested from the Client, Momentum shall, as soon as reasonably practicable either:
(i) inform the Client that it declines to provide the requested Services; or
(ii) inform the Client that it agrees to provide the requested Services provide the Client with a draft Statement of Work.
(b) if Momentum provides the Client with a draft Statement of Work pursuant to clause 3.1(a)(ii), Momentum and the Client shall discuss and agree that draft Statement of Work; and
(c) both parties shall sign the draft Statement of Work when it is agreed.
3.2 Once a Statement of Work has been agreed and signed in accordance with clause 3.1(c), no amendment shall be made to it except in accordance with clause 7 (Change control) or clause 17 (Variation).
3.3 A quotation for the Services given by Momentum shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
3.4 Services performed and Deliverables provided under each Statement of Work will be in accordance with and be subject to the terms and conditions of the relevant Statement of Work and this Agreement.
3.5 In the event of inconsistency or conflict between this Agreement and any Statement of Work, the terms of the Statement of Work shall take precedence to the extent of the conflict or inconsistency.
3.6 Each Statement of Work shall specify (as applicable) the scope and specification of the Services and deliverables, any obligations of each party additional to those set out in this agreement and the SoW Fees relevant to each Statement of Work.
3.7 Each Statement of Work unless otherwise agreed by the parties shall constitute a separate contract.
3.8 Any necessary or requested changes to the scope of the Statement of Work will be handled through the change control procedures outlined in this Agreement.
4. Momentum's responsibilities
4.1 Momentum shall use reasonable endeavours to provide the Services, and deliver the Deliverables to the Client, in accordance with a Statement of Work in all material respects.
4.2 Momentum 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 Momentum shall not be of the essence of this agreement.
5. Client's obligations
5.1 The Client shall:
(a) co-operate with Momentum in all matters relating to the Works;
(b) provide, for Momentum, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Client's premises, office accommodation, data and other facilities as required by Momentum including any such access as is specified in a Statement of Work;
(c) provide to Momentum in a timely manner all documents, information, items and materials in any form (whether owned by the Client or a third party) required under a Statement of Work or otherwise reasonably required by Momentum in connection with the Works and ensure that they are accurate and complete;
(d) inform Momentum of all health and safety and security requirements that apply at the Client's premises;
(e) ensure that all the Client's Equipment is in good working order and suitable for the purposes for which it is used and conforms to all relevant United Kingdom standards or requirements;
(f) obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable Momentum to provide the Works, including in relation to the installation of Momentum's Equipment, the use of all Client Materials and the use of the Client's Equipment, in all cases before the date on which the Works are to start; and
(g) keep, maintain and insure Momentum's Equipment in good condition and not dispose of or use Momentum's Equipment other than in accordance with Momentum's written instructions or authorisation.
6. Non-solicitation and employment
6.1 The Client shall not, without the prior written consent of Momentum, at any time from the date on which any Works commence to the expiry of 18 months after the completion of such Works, solicit or entice away from Momentum or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Momentum in the provision of such Works.
6.2 Any consent given by Momentum in accordance with clause 6.1 shall be subject to the Client paying to Momentum a sum equivalent to 20% of the then current annual remuneration of Momentum's employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Client to that employee, consultant or subcontractor.
7. Change control
7.1 Either party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until a relevant Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on: (a) the Works; (b) the Charges; (c) the timetable for the Services; and (d) any of the other terms of the relevant SoW.
7.2 If Momentum wishes to make a change to the Services it shall provide a draft Change Order to the Client.
7.3 If the Client wishes to make a change to the Services:
(a) it shall notify Momentum and provide as much detail as Momentum reasonably requires of the proposed changes, including the timing of the proposed change; and
(b) Momentum shall, as soon as reasonably practicable after receiving the information at clause 7.3(a) provide a draft Change Order to the Client.
7.4 If the parties agree to a Change Order, they shall sign it and that Change Order shall amend the relevant Statement of Work.
7.5 Momentum may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Client pursuant to clause
7.3 on a time and materials basis at Momentum’s daily rates as communicated by Momentum to the Client from time to time.
8. Charges and payment
8.1 By issuing a purchase order or instructing Momentum to commence the Services the Client will be deemed to have accepted these terms and conditions.
8.2 Momentum shall not be obliged to provide any additional services that the Client may request without a prior written agreement concerning the terms of our additional remuneration for such services.
8.3 Unless agreed otherwise in writing, Momentum shall invoice the Client on the commencement of the project for the SoW Fees. Expenses incurred by Momentum will be invoiced in the month following that during which they were incurred.
8.4 The Client agrees to pay all invoices within 30 days of receipt of a valid invoice except that if a third-party supplier requests payment in advance the Client will pay Momentum’s invoice for such prior agreed reasonable expense promptly on presentation. Momentum shall be entitled to suspend the Services in the event of late payment and charge reasonable interest at the lowest statutory rate.
8.5 If at any time Momentum becomes aware that it may not be able to perform the Services or deliver the Deliverables by the date agreed by it, it will notify the Client as soon as reasonably practicable, give details of the reasons for the delay, and the new date for the performance of the Services or delivery of the Deliverables.
8.6 The SoW Charges exclude the following, which shall be payable by the Client monthly in arrears, following submission of an appropriate invoice:
(a) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom Momentum engages in connection with the Works; and
(b) the cost to Momentum of any materials or services procured by Momentum from third parties for the provision of the Works.
8.7 Momentum may increase any SoW Charges on an annual basis in line with the percentage increase in the Retail Prices Index in the preceding 12-month period.
8.8 Any increase in the SoW Charges shall affect:
(a) the SoW Charges in each Statements of Work in force at the date the increase takes effect; and
(b) the calculation of the SoW Charges for Statements of Work entered into after the date the increase takes effect.
8.9 Momentum shall invoice the Client for the SoW Charges at the intervals specified, or on the achievement of the Milestones indicated, in the Statement of Work. If no intervals are so specified, Momentum shall invoice the Client at the end of each month for Works performed during that month.
8.10 All sums payable to Momentum under this agreement:
(a) are exclusive of VAT, and the Client shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
(b) 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. Intellectual property rights
9.1 Subject always to payment in full by the us, the Client shall own all rights, title and interests in the Deliverables that Momentum have created specifically for the Client, Momentum will assign to the Client (and in the case of copyright, by way of a present assignment of future copyright) all of the intellectual property rights in the Deliverables (excluding any Momentum Equipment), and promptly disclose and provide all Deliverables the Client.
9.2 The Client acknowledges and accepts that all Intellectual Property Rights in Momentum Equipment shall be owned by and remain the property of and vested in Momentum.
9.3 Subject to Momentum receiving payment of all Fees, Momentum hereby grants to the Client a licence to use such Momentum Equipment as are included in the Deliverables, for the period of time and for the purposes and in the territory agreed between the Client and Momentum in writing.
9.4 In relation to the Client Materials, the Client:
(a) and its licensors shall retain ownership of all IPRs in the Client Materials; and
(b) grants to Momentum a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of this agreement for the purpose of providing the Works to the Client.
9.5 The Client:
(a) warrants that the receipt and use in the performance of this agreement by Momentum, its agents, subcontractors or consultants of the Client Materials shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
(b) shall indemnify Momentum 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 professional costs and expenses) suffered or incurred or paid by Momentum arising out of or in connection with any claim brought against Momentum, its agents, subcontractors or consultants for actual or alleged infringement of a third party's Intellectual Property Rights, arising out of, or in connection with, the receipt or use in the performance of this agreement of the Client Materials.
9.6 If the Client (Indemnifying Party) is required to indemnify Momentum (Indemnified Party) under this clause 9, the Indemnified Party shall:
(a) notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at clause 9.5(b) (as applicable) (IPRs Claim);
(b) allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party's prior approval of any settlement terms, such approval not to be unreasonably withheld;
(c) provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party's costs so incurred; and
(d) not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
10. Data protection
10.1 For the purposes of this clause 10, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
10.2 Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 10 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
10.3 The Client consents to, (and shall procure all required consents, from its personnel, representatives and agents, in respect of) all actions taken by Momentum in connection with the processing of Momentum Personal Data, provided these are in compliance with the then-current version of Momentum's privacy policy available upon request (Privacy Policy). In the event of any inconsistency or conflict between the terms of the Privacy Policy and this agreement, the Privacy Policy will take precedence.
10.4 Without prejudice to the generality of clause 10.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of Momentum Personal Data and Client Personal Data to Momentum and the lawful collection of the same by Momentum for the duration and purposes of this agreement.
10.5 The Client provides its prior, general authorisation for Momentum to:
(a) appoint processors to process the Client Personal Data, provided that Momentum:
(i) 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 Momentum in this clause 10;
(ii) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of Momentum; and
(iii) shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to Momentum's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Client shall indemnify Momentum for any losses, damages, costs (including legal fees) and expenses suffered by Momentum in accommodating the objection.
(b) transfer Client Personal Data outside of the UK as required for the Purpose, provided that Momentum shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of Momentum, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
11. Confidentiality
11.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, Clients, clients or Momentums of the other party, except as permitted by clause 11.2(a).
11.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers 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 11; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 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.
12. Limitation of liability
12.1 References to liability in this clause 12 (Limitation of liability) include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
12.2 Nothing in this clause 12 shall limit the Client's payment obligations under this agreement.
(a) Nothing in this agreement shall limit the Client's liability under clause 9.5 (IPR indemnities).
12.3 Nothing in this agreement limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
12.4 Subject to clause 12.4, this clause 12.4 specifies the types of losses that are excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
12.5 Momentum has given commitments as to compliance of the Services with relevant specifications in clause 4.1 (Momentum's responsibilities). In view of these commitments, 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.
12.6 Unless the Client notifies Momentum that it intends to make a claim in respect of an event within the notice period, Momentum shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire three months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
13. Termination
13.1 Without affecting any other right or remedy available to it, Momentum may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the Client 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 5 days after being notified in writing to do so;
(b) the Client party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(c) the Client suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
(d) the Client commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;
(e) the Client party applies to court for, or obtains, a moratorium under Part A1 of the IA 1986;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Client (being a company, limited liability partnership or partnership);
(g) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(h) the holder of a qualifying floating charge over the assets of the Client (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over all or any of the assets of the Client or a receiver is appointed over all or any of the assets of the other party;
(j) a creditor or encumbrancer of the Client attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the Client in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.1(c) to clause 13.1(j) (inclusive);
(l) the Client suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(m) the Client’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.
13.2 For the purposes of clause 13.1
(a) material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from: (a) a substantial portion of this agreement; or
(b) any of the obligations set out in clauses 5,6,8,9 and 11. over the term of this agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
13.3 Without affecting any other right or remedy available to it, Momentum may terminate this agreement with immediate effect by giving written notice to the Client if:
(a) the Client fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 7 days after being notified to make such payment; or
(b) there is a change of Control of the Client.
14. Obligations on termination and survival
14.1 Obligations on termination or expiry On termination or expiry of this agreement:
(a) the Client shall immediately pay to Momentum all of Momentum's outstanding unpaid invoices and interest and, in respect of the Works supplied but for which no invoice has been submitted, Momentum may submit an invoice, which shall be payable immediately on receipt;
(b) the Client shall, return all of Momentum's Equipment. If the Client fails to do so, then Momentum may enter the Client's premises and take possession of Momentum's Equipment. Until Momentum's Equipment has been returned or repossessed, the Client shall be solely responsible for its safe keeping; and
(c) Momentum shall on request return any of the Client Materials not used up in the provision of the Works.
14.2 Survival
(a) On termination or expiry of this agreement, all existing Statements at Work shall terminate automatically.
(b) 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.
(c) 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.
15. Force majeure
15.1 Force Majeure Event means any circumstance not within a party's reasonable control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) 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;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) 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;
(f) collapse of buildings, fire, explosion or accident;
(g) any labour or trade dispute, strikes, industrial action or lockouts; and
(h) non-performance by Momentums or subcontractors; and
(i) interruption or failure of utility service.
15.2 Provided it has complied with clause 15.4, if a party is prevented, hindered or delayed in or from performing any of its obligations 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.
15.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
15.4 The Affected Party shall: (a) as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing 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 the agreement; and (b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
15.5 If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than 3 months, the party not affected by the Force Majeure Event may terminate this agreement by giving 2 weeks’ written notice to the Affected Party.
16. Assignment and other dealings
16.1 The Client 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 this agreement.
16.2 Momentum may at any time assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights under this agreement.
17. Variation
Subject to clause 7 (Change control), no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18. Waiver
18.1 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.
18.2 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.
19. 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.
20. Severance
20.1 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.
20.2 If any provision or part-provision of this agreement is deemed deleted under clause 20.1 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.
21. Entire agreement
21.1 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.
21.2 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 based on any statement in this agreement.
22. Conflict
If there is an inconsistency between any of the provisions of this agreement and the provisions of the Schedules, the provisions of this agreement shall prevail.
23. No partnership or agency
23.1 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.
23.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
24. Third party rights
24.1 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.
24.2 The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.
25. Notices
25.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
(a) 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
(b) sent by email to the address as notified by each party to the other from time to time.
25.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next Business Day delivery services, at 9.00 am GMT on the second Business Day after posting; or
(c) if sent if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 25.2(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
25.3 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.
26. 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.
27. 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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