THIS IS THE SCHEDULE REFERRED TO IN THE FOREGOING CONTRACT DETAILS FOR THE SUPPLY OF SERVICES BY DLR MEDIA LIMITED TO THE ‘CUSTOMER’
Part 1: The Conditions
Business Day: a day other than a Saturday, Sunday or public holiday in Scotland, when banks in Edinburgh are open for business.
Change Order: has the meaning in Clause 6.1.
Charges: the sums payable by the Customer for the supply of the Services by the Supplier, as set out in the Contract Details.
Conditions: these terms and conditions set out in Clause 1 (Interpretation) to Clause 12 (General) (inclusive).
Contract: the contract between the Customer and the Supplier for the supply of the Services in accordance with the Contract Details and the three parts to this Schedule.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer Materials: all materials, equipment and tools, drawings, specifications and data in any form whether owned by the Customer or a third party, which are supplied by the Customer to the Supplier in connection with the Services.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
Deliverables: all documents, products and materials developed by the Supplier or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation computer programs, data, reports and specifications (including drafts), including those Key Deliverables specifically set out in Part 3 of the Schedule.
Extended Term: any additional period in which the Supplier is to provide the Services to the Customer as defined in Clause 2.3.
Initial Term: the initial period in which the Supplier is to provide the Services to the Customer as detailed in the Contract Details.
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 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.
Key Deliverables: the specific deliverables as set out in Part 3 of the Schedule.
Project-Based Customer: this is where the Services to be provided by the Supplier to the Customer are in relation to a specific project as set out in the Head of Terms Agreement.
Retainer-Based Customer: this is where the Services to be provided by the Supplier to the Customer are to be provided on an ongoing basis, as agreed from time to time between the parties.
Services: the services, including without limitation any Deliverables, to be provided by the Supplier pursuant to the Contract as detailed in the Head of Terms Agreement.
Services Start Date: the day on which the Supplier is to start provision of the Services, as set out in the Contract Details.
Supplier Materials: all materials, equipment and tools, drawings, specifications and data in any form whether owned by the Supplier or a third party, which are supplied by the Supplier in delivery of the Services to the Customer, excluding the Deliverables.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Clause and Schedule headings shall not affect the interpretation of this Contract.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
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.
Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
This Contract shall be binding on, and ensure to the benefit of, the parties to this Contract 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 a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
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.
A reference to writing or written includes fax and email.
A reference to writing or written includes fax and 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 Contract or to any other agreement or document referred to in this Contract is a reference of this Contract or such other agreement or document as varied (in each case, other than in breach of the provisions of this Contract) from time to time.
References to clauses and schedules are to the Clauses and Schedules of this Contract.
Commencement and term
The Contract shall commence on the Services Start Date and shall continue for the Initial Term.
Where the Customer is a Project-Based Customer, unless the Contract is terminated earlier in accordance with these Conditions, the Contract shall terminate at the end of the Initial Term when it shall terminate automatically without notice.
Subject to Clauses 2.4 and 2.5, where the Customer is a Retainer-Based Customer, unless the Contract is terminated earlier in accordance with these Conditions, the Contract shall automatically extend on expiry of the Initial Term on a rolling monthly basis (Extended Term).
Where the Customer is a Retainer-Based Customer, the Customer may give written notice to the Supplier, not later than 28 days before the end of the Initial Term or the relevant Extended Term, to terminate this agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.
Where the Customer is a Retainer-Based Customer, the Supplier may give written notice to the Customer, not later than 28 days before the end of the Initial Term or the relevant Extended Term, to terminate this agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.
Supply of services
The Supplier shall use reasonable endeavours to supply the Services in accordance with the Contract in all material respects.
The Supplier shall use reasonable endeavours to meet any performance dates specified in Part 2 or Part 3 of the Schedule but such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of this Contract.
The Customer shall:
co-operate with the Supplier in all matters relating to the Services;
provide for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as required by the Supplier;
provide, in a timely manner, all documents, information, items and materials in any form (whether owned by the Customer or third party) as the Supplier may reasonably require in connection with the Services, and ensure that they is accurate and complete in all material respects;
inform the Supplier of all health and safety and security requirements that apply at the Customer’s premises; and
If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
The Customer shall not, without the prior written consent of the Supplier, at any time from the Services Start Date to the expiry of 2 years after the termination or expiry of this Contract, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services.
Either party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until a 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:
the Supplier’s existing charges;
the timetable of the Services; and
any of the terms of this Contract,
If the Supplier wishes to make a change to the Services it shall provide a draft Change Order to the Customer.
If the Customer wishes to make a change to the Services:
it shall notify the Supplier and provide as much detail as the Supplier reasonably requires of the proposed changes, including the timing of the proposed changes; and
the Supplier shall, as soon as reasonably practicable after receiving the information at Clause 6.3(a), provide a draft Change Order to the Customer.
If the parties agree to a Change Order, they shall sign it and that Change Order shall amend this Contract.
The Supplier may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Customer pursuant to Clause 6.3 on a time and materials basis at the Supplier’s daily rates communicated to the Customer by the Supplier from time to time.
In relation to the Deliverables:
the Supplier and its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Customer Materials;
the Supplier grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables (excluding the Customer Materials) for the purpose of receiving and using the Services and the Deliverables in its business; and
the Customer may sub-license the rights granted in Clause 7.1(b):
to its customers; and
subject to their entering into appropriate confidentiality undertakings, to third parties for the purpose of the Customer’s receipt of services similar to the Services.
In relation to the Customer Materials, the Customer:
and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials; and
grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this Contract for the purpose of providing the Services to the Customer.
In relation to the Supplier Materials, the Supplier:
and its licensors shall retain ownership of all Intellectual Property Rights in the Supplier Materials; and
grants the Customer a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Supplier Materials for the term of this Contract for the purpose of delivering the Services to the Customer.
warrants, as far as it is aware, that the receipt and use of the Services and the Deliverables by the Customer and its permitted sub-licensees shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
shall not be in breach of the warranty at Clause 7.4(a), to the extent the infringement arises from:
the use of the Customer Materials in the development of, or the inclusion of the Customer Materials in any Deliverable;
any modification of the Deliverables or Services, other than by or on behalf of the Supplier; and
compliance with the Customer’s specifications or instructions.
warrants that the receipt and use of the Customer Materials in the performance of this Contract by the Supplier, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
shall indemnify the Supplier in full 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) suffered or incurred by the Supplier arising out of or in connection with any claim brought against the Supplier, 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 Contract of the Customer Materials.
If the Customer is required to indemnify the Supplier under this Clause 7, the Supplier shall:
notify the Customer in writing of any claim against it in respect of which it wishes to rely on the indemnity at Clause 7.5(b) (as applicable) (IPRs Claim);
allow the Customer, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Customer shall obtain the Supplier’s prior approval of any settlement terms, such approval not to be unreasonably withheld;
provide the Customer with such reasonable assistance regarding the IPRs Claim as is required by the Customer; and
not, without prior consultation with the Customer, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Customer considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Supplier into disrepute.
Charges and payment
In consideration of the provision of the Services by the Supplier, the Customer shall pay the Charges as stated in the Contract Details.
Where any Deposit is due, as stated in the Contract Details, this must be paid in advance of the Services Start Date.
The Charges exclude the following which shall be payable by the Customer following submission of an appropriate invoice:
the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services; and
the cost to the Supplier of any materials or services procured by the Supplier from third parties for the provision of the Services as such items and their cost are approved by the Customer in advance from time to time.
The Supplier may increase the Charges on an annual basis with effect from each anniversary of the date of this Contract in line with the percentage increase in the Retail Prices Index in the preceding 12-month period, and the first such increase shall take effect on the first anniversary of the date of this Contract and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.
The Supplier shall invoice the Customer for the Charges at the intervals as specified in the Contract Details. If no intervals are so specified the Supplier shall invoice the Customer at the end of each month for Services performed during that month.
The Customer shall pay each invoice submitted to it by the Supplier within 7 days of receipt, to a bank account nominated in writing by the Supplier from time to time.
Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier any sum due under this Contract on the due date:
the Customer shall 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 8.7(a) will accrue each day at 4% a year above the Bank of Scotland’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%;
the Supplier may suspend all or part of the Services until payment has been made in full.
All sums payable to the Supplier under this Contract:
are exclusive of VAT (where applicable), and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
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).
Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor.
Without prejudice to the generality of Clause 9.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of this Contract.
Without prejudice to the generality of Clause 9.1, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under this Contract:
process that personal data only on the documented written instructions of the Customer;
keep the Personal Data confidential;
comply with the Customer’s reasonable instructions with respect to processing personal Data with the Customer’s data protection policy;
comply with the Customer’s reasonable instructions with respect to processing Personal Data;
not transfer any Personal Data outside of the European Economic Area without the Customer’s prior written consent;
assist the Customer in responding to any data subject access request and to ensure compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, privacy impact assessments and consultations with supervisory authorities or regulators;
notify the Customer without undue delay on becoming aware of a Personal Data breach or communication which relates to the Customer’s compliance with the Data Protection Legislation;
at the written request of the Customer, delete or return Personal Data and any copies thereof to the Customer on termination of the Engagement unless required by the Data Protection Legislation to store the Personal Data;
maintain complete and accurate records and information to demonstrate compliance with this clause 9; and
ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, 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 (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
The Customer consents to the Supplier appointing a third party processor of Personal Data under this Contract. The Supplier confirms that it has entered or (as the case may be) will enter with the third party processor into a written Contract incorporating terms which are substantially similar to those set out in this Clause 9 and in either case which the Supplier undertakes reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this Clause 9.
Either party may, at any time on not less than 30 days’ notice, revise this Clause 9 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Contract).
Limitation of liability
The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £500,000 per claim. The limits and exclusions in this Clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
death or personal injury caused by negligence;
fraud or fraudulent misrepresentation; and
breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
Subject to Clause 10.2, the Supplier’s total liability to the Customer shall not exceed the amount of Charges paid or payable by the Customer to the Supplier in the 12 months preceding the event giving rise to liability. The Supplier’s total liability includes liability in contract, delict (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Contract.
This Clause 10.4 sets out specific heads of excluded loss.
Subject to Clause 10.2, the types of loss listed in Clause 10.4(b) are wholly excluded by the parties.
The following types of loss are wholly excluded:
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.
Indirect or consequential loss.
Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
the other party repeatedly breaches any of the terms of this Contract 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 Contract;
the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
For the purposes of Clause 11.1(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 substantial portion of this Contract; or
any of the obligations set out in Clauses 7, 8 or 9,
over the term of this Contract. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
the Customer fails to pay any amount due under the Contract on the due date for payment; or
there is a change of control of the Customer.
On termination of the Contract for whatever reason:
the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
the Supplier shall on request return any of the Customer Materials not used up in the provision of the Services; and
the following clauses shall continue in force: Clause 1 (Interpretation), Clause 5 (Non-solicitation), Clause 7 (Intellectual property rights), Clause 10 (Limitation of liability), Clause 11.4-11.5 (Consequences of termination), Clause 12.3 (Confidentiality), Clause 12.6 (Waiver), Clause 12.7 (Severance), Clause 12.13 (Governing law) and Clause 12.14 (Jurisdiction).
Termination or expiry of the Contract shall not affect any of the 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 Contract which existed at or before the date of termination or expiry.
Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 1 month, the party not affected may terminate the Contract by giving 14 days’ written notice to the affected party.
Subcontracting. The Supplier may subcontract any or all of its rights or obligations under the Contract without the prior written consent of the Customer. The Supplier shall remain responsible for all acts and omissions of its subcontractors as if they were its own.
Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers to which the other party belongs, except as permitted by Clause 12.3(b).
Each party may disclose the other party’s confidential information:
to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 12.3; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.
The Contract 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 acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
A waiver of any right or remedy under the Contract 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 the Contract 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 the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause shall not affect the validity and enforceability of the rest of the Contract.
Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
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
sent by email to the address specified in the Contract Details.
Any notice or communication shall be deemed to have been received:
if delivered by hand, on signature of a delivery receipt;
if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
if sent by fax or 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 12.8(b)(iii), 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.
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.
A notice given under the Contract is valid if sent by email.
Assignation. Neither party shall 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 Contract.
No partnership or agency. Nothing in this Contract 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. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) (Scotland) Act 2017 to enforce any term of the Contract.
Governing law. The Contract, 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 Scotland.
Jurisdiction. Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
This remit for this retainer solely covers the cost agreed of the services in the headed terms and any other services which DLR Media Limited offers will have to be quoted separately.