BBG Business Development LLP will provide a 'Scope of Services' for each project and client and these will link to our standard terms and conditions as below.
BBG BUSINESS DEVELOPMENT TERMS AND CONDITIONS (these “Terms and Conditions”)
In this Agreement:
1.1 the following terms shall have the following meanings unless the context otherwise requires:
this "Agreement" these Terms and Conditions together with the relevant Scope of Services and any other documents identified in the relevant Scope of Services;
"BBG" BBG Business Development LLP, a limited liability partnership registered in England under number OC416849 and having its registered office at 35 Ballards Lane, London, N3 1XW;
"Business Day" any day other than (a) a Saturday, (b) a Sunday, or (c) a day which is a bank holiday in England (as set out on for bank holidays in England);
"Client" the client whose details are set out in the Scope of Services;
"Commencement Date" the date stipulated as such in the Scope of Services;
"Confidential Information" any information in any form or medium obtained by or on behalf of one Party from or on behalf of the other Party in relation to this Agreement which is expressly marked as confidential or which a reasonable person would reasonably consider to be confidential whether disclosed or obtained before, on or after the date of this Agreement together with any reproductions of such information or any part of this information (and the Client’s "Confidential Information" shall include the Data; and BBG's "Confidential Information" shall include the Deliverables);
"Data" any data used specifically in relation to the Client’s business, including any such data supplied by the Client’s employees, agents or contractors (other than BBG);
"Deliverables" any deliverables, materials, works of authorship, outputs, tools, methodologies, methods, processes, research, recommendations, evaluations, results, reports, spreadsheets, documents, descriptions, specifications, techniques, notes, records, descriptions, systems, ideas, concepts, discoveries, information, text, data, lists, know-how, creations, diagrams, flowcharts, designs, sketches, models, drawings, photographs, images, plans and proposals, on whatever media, provided or used or to be provided or used by BBG (where applicable, to the Client) in the course of performing the Services;
"Dependencies" any requirements for the Client to perform its obligations under this Agreement which may impact on the ability of BBG to be able to provide the Services (and at the times anticipated), including those described in the Scope of Services as being "Dependencies";
"Fee" the fee payable by the Client to BBG for BBG’s supply of the Services as stipulated in the relevant Scope of Services;
"Intellectual Property Rights" copyright and related rights, trade marks and service marks, trade names and domain names, rights under licences, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, patents, rights to inventions, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, 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;
"Liability" has the meaning given to it in Clause 7.8.1;
"Location" the site at which BBG shall provide the Services, being wherever BBG and the Client agree in the Scope of Services or otherwise, or as otherwise reasonably decided by BBG;
"Negligence" has the meaning given to it in Clause 7.8.2;
"Party" either BBG or the Client;
"Rates" BBG’s time and materials rates for providing services, being initially at either the rates set out in the Scope of Services or (if not set out there) at BBG’s standard time and materials rates from time to time, as uplifted in accordance with this Agreement; and subject to any premium in accordance with BBG’s standard percentage premium rates for performing any of the Services at the Client’s request outside of BBG’s normal working hours;
"Scope of Services" the document containing the specific information relating to the particular scope of services or deliverables supplied or to be supplied by BBG to the Client;
"Services" any services provided or to be provided by BBG to the Client (and which may include BBG’s provision or use of Deliverables, and consultancy, advisory, analysis and design), as may be more particularly described in or pursuant to the Scope of Services;
1.2 references to "Clauses" are to clauses of these Terms and Conditions;
1.3 the headings are inserted for convenience only and shall not affect the interpretation or construction of this Agreement;
1.4 words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral and references to persons shall include an individual, company, corporation, firm or partnership;
1.5 references to "written" or in "writing" (except in respect of sending a notice in accordance with Clause 11) includes in electronic form;
1.6 references to "includes" or "including" or like words or expressions shall mean without limitation; and
1.7 references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification).
2.1 The terms of this Agreement apply to the exclusion of any terms and conditions submitted, proposed or stipulated by the Client. These Terms and Conditions apply to all Services and Deliverables.
2.2 Save as expressly provided herein, this Agreement shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the Parties preceding the date of this Agreement and in any way relating to the subject matter of this Agreement and to the exclusion of any representations not expressly stated herein except for any fraudulent misrepresentations or any misrepresentation as to a fundamental matter. Each Party acknowledges that it has not entered into this Agreement based on any representation that is not expressly incorporated into this Agreement.
2.3 This Agreement constitutes the whole agreement and understanding of the Parties as to the subject matter hereof and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to herein.
2.4 In the event of any conflict between the provisions of any of the documents within this Agreement, then the Scope of Services shall prevail over these Terms and Conditions.
2.5 If the Client provides BBG with a purchase order for the Services or Deliverables, the purchase order shall be purely for the Client's administrative purposes only and shall not form part of this Agreement.
2.6 This Agreement shall be legally formed and the Parties shall be legally bound when both Parties have signed the Scope of Services.
2.7 Except as expressly provided otherwise in this Agreement, no change to this Agreement shall be binding unless it is agreed in writing by each Party.
2.8 Each agreed Scope of Services constitutes a separate agreement. There may be more than one agreement between the Parties in force at the same time as this Agreement.
3.1 BBG warrants that:
3.1.1 it shall use its reasonable skill and care in providing any Services and in accordance with good industry practice (meaning the level of skill and care as would be provided by a skilled provider of similar services in BBG’s industry);
3.1.2 its employees, agents and contractors have the necessary skill to provide any Services;
3.1.3 any Services will be provided in a professional, competent and workmanlike manner;
3.1.4 it has all necessary rights, permissions and consents to enter into, and perform its obligations under, this Agreement (including any Intellectual Property Rights in respect of the Deliverables);
3.1.5 it shall ensure that BBG’s employees, agents and contractors co-operate with, and make themselves available at all reasonable times for discussion and meetings with, the Client and the Client's employees, agents and other contractors;
3.1.6 its advice, suggestions and recommendations shall be based on its own information, expertise, judgements, experience, knowledge and opinions, and shall be independent and unbiased;
3.1.7 it shall use its reasonable endeavours to ensure that while it and its employees, agents and contractors are on the Client's premises, they will conform to the Client's normal codes of staff and security practice as are advised to them in advance by the Client and where reasonably possible to cause minimal disturbance to the Client’s representatives who are not involved with the receipt of the Services;
3.1.8 it shall fully, frequently and promptly update the Client as to progress with the Services and Deliverables generally, including reporting on any concerns, issues, queries or comments that need to be resolved or discussed; and
3.1.9 it shall comply with all applicable laws, statutes, regulations and bye-laws, in relation to the exercise of its rights and performance of its obligations under this Agreement.
3.2 BBG shall provide the Services in accordance with what is stipulated in the Scope of Services but it otherwise does not warrant that the Services or Deliverables will meet the individual requirements of the Client. BBG is not responsible for any deliverables or services not expressly stipulated in this Agreement that BBG will provide. The Client is responsible for any deliverables and services that it needs to obtain from someone other than BBG. BBG shall not be responsible for providing and legal or human resources advice. Except for any matter upon which BBG specifically agrees in writing with the Client to advise or do, BBG shall not be responsible or have any Liability for advising on, or failing to advise on, or doing, or failing to do, anything else.
3.3 Subject to BBG performing the Services within any timeframe and at any Location agreed as being necessary for the performance of the Services, BBG may select its own working times and location provided that the nature of particular Services does not require the particular Services to be undertaken during particular working times or at any particular location. The Client may request any such working times and the Location as are reasonable in the circumstances and BBG shall undertake such Services during such working times or at such Location.
3.4 BBG shall use its reasonable endeavours to perform its obligations within any timescales set out in this Agreement, but BBG shall not have any Liability for any delays or failure to accurately perform its obligations:
3.4.1 if it has used those endeavours; or
3.4.2 if caused by any failure or delay in any Dependencies including any failure or delay on the part of the Client or its employees, agents or other contractors to perform their obligations or by any breach by the Client of this Agreement or of any other agreement with BBG.
If there is any slippage in time, BBG shall use its reasonable endeavours to reschedule delayed tasks to a mutually convenient time.
3.5 If BBG is delayed or hindered in providing any Services as a result of any failure or delay in any Dependencies including any breach, delay or failure by the Client to perform any of its obligations under this Agreement or of any other agreement between the Parties, then BBG may charge the Client at the Rates for any time reasonably incurred as a result of the hindrance or breach (including the time it actually spends in providing the Services, and any wasted time for which BBG had anticipated that its personnel would spend in providing Services under this Agreement but become unable to do so at that time as a result of the Client’s act or omission and which resources BBG cannot reasonably re-allocate).
3.6 Any advice, suggestion, recommendation, output or evaluation made by BBG shall be based on the information, Data and instructions provided by the Client and the information, expertise, judgement, experience, knowledge and opinion of the personnel at BBG who are providing the Services. BBG does not warrant that it will consider every possibility or option nor that any particular outcome will be achieved by the Client, but it shall provide the Services in accordance with the standards set out in Clause 3.1. Any advice, suggestion, recommendation, output or evaluation shall also be as at the time of providing it and not the future.
3.7 Where this Agreement expressly requires BBG to achieve an end result, if and to the extent that BBG does not do so and this is due to BBG’s fault, BBG shall have the opportunity to take corrective action (at no additional Fee) within a reasonable time (and to the extent permitted by law, and subject to Clause 7.2, this shall be the Client’s sole right and remedy in respect thereof).
3.8 Except where expressly provided for within this Agreement, BBG excludes all conditions, warranties, terms and obligations, whether implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the Services and Deliverables.
4 CLIENT'S OBLIGATIONS
4.1 The Client shall (and shall, where applicable, procure that its employees, agents, consultants and other contractors shall):
4.1.1 provide proper, adequate, safe, comfortable and suitable environmental and operating conditions if BBG undertakes any work at the Client's (or its agents’ or other contractors') premises;
4.1.2 inform BBG in writing within a reasonable time before the commencement of any Services of any regulations relevant to BBG’s representatives when working at any premises under the control of the Client including site regulations;
4.1.3 ensure that the Client's employees, agents and other contractors fully co-operate with, and make themselves available at all reasonable times for discussion and meetings with, BBG and its employees, agents and contractors and to enable BBG to promptly perform its obligations under this Agreement;
4.1.4 promptly provide to BBG such Data, information and assistance (including anything identified in the Scope of Services to be provided to BBG) that will enable BBG to carry out fully, accurately, promptly and efficiently its obligations under this Agreement to the best of its ability;
4.1.5 take all care and assume all responsibility with using, sending and receiving any Data. The risk of and responsibility for using, securing, copying, preserving and taking back-ups of Data is with the Client;
4.1.6 promptly comply with all reasonable requests of BBG in connection with this Agreement;
4.1.7 ensure it has all necessary rights, permissions and consents to enter into, and perform its obligations under, this Agreement; and
4.1.8 comply with all applicable laws, statutes, regulations and bye-laws in relation to the exercise of its rights and performance of its obligations under this Agreement.
4.2 BBG shall be responsible only for providing the Services. The Client shall be responsible for any decision or implementation by the Client and its employees, agents and contractors relating to any advice, suggestion, recommendation, output, evaluation or course of action proposed in the provision of the Services.
4.3 It is the Client's responsibility to ensure that the Services and Deliverables are sufficient and suitable for its purposes and meet its individual requirements.
4.4 It is the Client’s responsibility to ensure that:
4.4.1 any decision or implementation made by the Client is made in the Client’s best interests; and
4.4.2 the process of making such decision or implementation by the Client is made in compliance with the relevant risk and general business strategy of the Client and business environment in which the Client operates;
and the Client bears sole responsibility and Liability for the consequences of any such decision or implementation.
4.5 The Client agrees, during the term of this Agreement and for a period of one year following its termination or its expiry, not to solicit or induce any employee, agent or contractor of BBG who was involved with providing Services to the Client to terminate their employment or engagement with BBG, or to provide any services to the Client (other than through BBG), without the prior written consent of BBG. For the avoidance of doubt, any general recruitment advertisement placed by or on behalf of the Client shall not be deemed to be solicitation for the purposes of this Clause 4.5. BBG shall not have any Liability for delay, breach, mis-performance or non-performance of this Agreement if caused by the Client's engagement or employment of any person engaged or employed by BBG.
5 INTELLECTUAL PROPERTY RIGHTS
5.1 The Parties acknowledge that, as between the Parties:
5.1.1 the Client and its licensors own all Intellectual Property Rights in the Data provided by the Client to BBG, whether or not BBG had any involvement in creating Data for the Client; and
5.1.2 BBG and its licensors own all Intellectual Property Rights in the Deliverables, whether or not any of the Deliverables are created by BBG at the specific request of the Client.
5.2 To the extent that:
5.2.1 BBG would otherwise be the owner, BBG hereby assigns to the Client all its Intellectual Property Rights in the Data provided by the Client; and
5.2.2 the Client would otherwise be the owner, the Client hereby assigns to BBG all its Intellectual Property Rights in the Deliverables provided by BBG.
5.3 The Client hereby grants to BBG a royalty-free, worldwide, non-exclusive, assignable, sublicensable licence to use the Data for the purposes of performing this Agreement.
5.4 BBG hereby grants to the Client a royalty-free, worldwide, perpetual, non-exclusive licence to use any such Deliverables as are owned by BBG for the Client’s usual internal business purposes. Such licence shall be non-assignable and non-sublicensable except to the extent that BBG provides its prior written consent.
6.1 Each Party shall keep and procure to be kept secret and confidential the Confidential Information of the other Party and shall not use nor disclose the same save:
6.1.1 for the purposes of the proper performance of this Agreement; or
6.1.2 as otherwise permitted by this Agreement; or
6.1.3 with the prior written consent of the other Party.
6.2 Where one Party discloses Confidential Information of the other Party to its employee, consultant, subcontractor, supplier, customer, agent, professional adviser or insurer, it shall do so on a need-to-know basis and subject to obligations equivalent to those set out in this Clause 6. Each Party shall use all reasonable endeavours to ensure that any such employee, consultant, subcontractor, supplier, customer, agent, professional adviser or insurer complies with such obligations.
6.3 The obligations of confidentiality in this Clause 6 shall not extend to any matter which either Party can show:
6.3.1 is in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations of this Agreement; or
6.3.2 was in its written records prior to receipt; or
6.3.3 was independently developed by it; or
6.3.4 was independently disclosed to it by a third party entitled to disclose the same.
6.4 If either Party is required to disclose the Confidential Information of the other Party under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction, then the Party so required may disclose the Confidential Information to the extent required but shall, prior to any disclosure where practicable, give the other Party as much warning thereof as practicable and inform in writing and consult with the other Party and, at the other Party's request and cost, fully co-operate with and assist that other Party in opposing any such disclosure.
6.5 Neither Party shall make any announcement of any kind in respect of the subject matter of this Agreement except with the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed) or as is required by law. The Parties shall act in a co-operative way in approving any announcement following the other Party’s request for consent.
6.6 Subject to Clause 6.5, BBG may (for its marketing purposes including in any website, promotional material, pitch document or on social media) identify the Client as its client and the type of Services provided by BBG to the Client, provided that in doing so BBG shall not (without the Client's prior written consent) reveal any Confidential Information of the Client.
6.7 The obligations of this Clause 6 shall continue after termination or expiry of this Agreement for whatever reason.
7 LIMITATION OF LIABILITY
7.1 This Clause 7 prevails over all other Clauses and sets forth the entire Liability of each Party, and the sole and exclusive remedies of the other Party, in respect of:
7.1.1 performance, non-performance, purported performance, delay in performance or mis-performance of this Agreement or of any Services or Deliverables in connection with this Agreement; or
7.1.2 otherwise in relation to this Agreement or entering into this Agreement.
7.2 Neither Party excludes or limits its Liability for:
7.2.1 its fraud; or
7.2.2 death or personal injury caused by its Negligence; or
7.2.3 any infringement of the other Party’s or the other Party’s licensor’s Intellectual Property Rights; or
7.2.4 any other Liability which cannot be excluded or limited by applicable law.
7.3 Subject to Clause 7.2, each Party does not accept and it hereby excludes any Liability for Negligence other than any Liability arising pursuant to the terms of this Agreement.
7.4 Subject to Clause 7.2, neither Party shall have Liability in respect of any:
7.4.1 indirect or consequential losses, damages, costs or expenses;
7.4.2 loss of actual or anticipated profits;
7.4.3 loss of contracts;
7.4.4 loss of use of money;
7.4.5 loss of anticipated savings;
7.4.6 loss of revenue;
7.4.7 loss of goodwill;
7.4.8 loss of reputation;
7.4.9 ex gratia payments;
7.4.10 loss of business;
7.4.11 loss of operation time;
7.4.12 loss of opportunity; or
7.4.13 loss of, damage to or corruption of, data;
whether or not such losses were reasonably foreseeable or the Party in default or its agents had been advised of the possibility of the other incurring such losses. For the avoidance of doubt, Clauses 7.4.2 to 7.4.13 apply whether such losses are direct, indirect, consequential or otherwise.
7.5 Subject to Clause 7.2, and subject to any specific right or remedy expressly set out in this Agreement that explicitly provides that the following cap may be exceeded, the total aggregate Liability of each Party shall be limited to the greater of: (a) £250,000; or (b) 110% of the total sums paid and total other sums payable, in aggregate, by the Client to BBG under this Agreement.
7.6 The limitation of Liability under Clause 7.5 have effect in relation both to any Liability expressly provided for under this Agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of this Agreement.
7.7 The Client shall not limit its Liability for failure to pay the Fees and expenses.
7.8 In this Agreement:
7.8.1 "Liability" means liability in or for breach of contract (including liability under any indemnity), tort (whether deliberate or not), Negligence, breach of statutory duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement (and for the purposes of this definition, all references to "this Agreement" shall be deemed to include any collateral contract); and
7.8.2 "Negligence" means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty).
8 FEES AND EXPENSES
8.1 In consideration for obtaining the Services provided by BBG pursuant to this Agreement, the Client shall pay to BBG the Fees.
8.2 The Fees shall be as set out in the Scope of Services.
8.3 Unless otherwise expressly stated within this Agreement, all Fees for the Services shall be chargeable on a time basis at the Rates for the time actually spent by BBG (and not for the time estimated to be provided). Unless otherwise stipulated in writing between the Parties, a "man day" shall be eight hours (including up to an hour for lunch); and BBG may round up to the nearest quarter of a man day. Time spent includes travel to and from BBG’s place of business or home to any other site (including to the Client’s premises). BBG shall maintain, and if reasonably requested by the Client make available to the Client, records of time spent in providing the Services.
8.4 BBG may charge the Client for its reasonable expenses incurred in the course of performing its obligations under this Agreement, including for the reasonable accommodation, travel (including air travel, taxis, own car use and vehicle rental), telephone, food, subsistence, out-of-pocket and other expenses incurred in the course of performing this Agreement outside of the relevant person’s normal place of work. BBG shall maintain, and if reasonably requested by the Client make available to the Client, records of the expenses incurred.
8.5 Unless set out otherwise in this Agreement (including if the Scope of Services requires for payment to be following certain milestones), BBG may issue invoices to the Client for the Fees and expenses monthly in advance.
8.6 The Client shall pay BBG for all undisputed Fees and expenses within 30 days after receipt of BBG's proper invoice. If and to the extent there is a dispute as to the amount, the Client shall pay for all undisputed amounts.
8.7 BBG shall provide details with its invoice to detail when, where and how much time was spent and (where reasonably possible) vouchers and receipts for the expenses incurred, and such other information as the Client may reasonably require in order to ascertain the Fees and expenses due.
8.8 Where Services are provided on a time basis, BBG does not guarantee that any work intended to be completed within a particular period of time or within a particular maximum figure will be completed during that timeframe or within that budget; if the Client would like BBG to spend any more time continuing to work towards producing a result where this Agreement contains a capped amount of time to be spent or a maximum amount within a range, any more time will be subject to the Parties first agreeing in writing to a new Agreement or to a change to this Agreement.
8.9 All sums due to BBG are exclusive of value added tax and other sales or import or export duties or taxes (if applicable) which the Client shall pay to BBG in addition at the same time as payment of the Fees and expenses.
8.10 The Client shall pay BBG by any payment method reasonably stipulated by BBG. No payment shall be considered paid until it is received by BBG in cleared funds in full.
8.11 Payment shall be in the currency in force in England from time to time or in such other currency as is stipulated for the Fees or Rates.
8.12 If the Client is late in paying any part of any undisputed monies due to BBG under this Agreement or any other agreement between the Parties, BBG may (without prejudice to any other right or remedy available to it whether under this Agreement or by any statute, regulation or bye-law) do either or both of the following:
8.12.1 charge interest and other charges on the amount due but unpaid in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly; and
8.12.2 suspend the performance of this Agreement and any other agreement between the Parties until payment in full has been made.
9 TERM AND TERMINATION
9.1 This Agreement shall commence on the Commencement Date and, subject to either Party continuing to have a right to earlier termination pursuant to its termination rights under this Agreement, shall continue in force until the later of:
9.1.1 the Client has paid for all the Fees and expenses in full; and
9.1.2 BBG has finished providing the Services and Deliverables as are required by this Agreement;
or (if Services are being provided on an ad hoc or on-going basis) until terminated by either Party giving to the other no less than one month's notice.
9.2 Either Party may terminate this Agreement immediately by notice to the other Party if:
9.2.1 the other Party is in material breach of any of its obligations under this Agreement or any other agreement between the Parties which is incapable of remedy; or
9.2.2 the other Party fails to remedy, where capable of remedy, any material breach of any of its obligations under this Agreement or any other agreement between the Parties after having been required in writing to remedy such breach within a period of no less than 30 days; or
9.2.3 the other Party is in persistent breach of any of its obligations under this Agreement or any other agreement between the Parties; or
9.2.4 the other Party gives notice to any of its creditors that it has suspended or is about to suspend payment or if it is or shall be unable to pay its debts as they come due, or enters into any compromise or arrangement with any of its creditors (other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other Party), or an order is made or a resolution is passed for the winding-up of the other Party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other Party or a receiver or manager or administrative receiver is appointed in respect of all or any of the other Party's assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver or manager or administrative receiver or administrator or which entitle the court to make a winding-up or bankruptcy order or the other Party takes or suffers any similar or analogous action in consequence of debt in any jurisdiction.
9.3 For the purposes of Clause 9.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects other than as to time to the reasonable satisfaction of the other Party.
9.4 BBG may terminate this Agreement immediately by notice to the Client if the Client is at least five Business Days’ late in paying any undisputed sums due under this Agreement or any other agreement between the Parties and BBG has then given to the Client at least a further five Business Days' notice requiring the Client to pay in full within such five Business Day (or, if BBG desires, longer) period failing which BBG may exercise its right to terminate under this Clause 9.4.
9.5 Termination or expiry of this Agreement shall be without prejudice to any accrued rights or remedies of either Party.
9.6 Termination or expiry of this Agreement will not affect the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
9.7 Upon termination or expiry of this Agreement for any reason:
9.7.1 BBG shall cease to perform this Agreement;
9.7.2 all outstanding Fees and expenses for Services or Deliverables provided or in the process of being created for delivery (including for any Services not yet provided) shall become immediately payable, whether invoiced or not (except to the extent otherwise expressly stated in this Agreement);
9.7.3 subject to BBG having been paid in full for all Fees and expenses, BBG shall deliver up to the Client all Deliverables made to date; and
9.7.4 the owner of Confidential Information may at its option require the other Party to delete promptly all Confidential Information belonging to the Party requiring the action from any computer disks, tapes or other material in its possession or under its control or promptly deliver up or destroy materials and tangible items in its possession or under its control which contain any such Confidential Information. The owner of Confidential Information may require the other Party to provide a written declaration, signed by an officer or other authorised individual stating that there has been full compliance with this Clause 9.7.4.
10 FORCE MAJEURE
10.1 Neither Party shall have any Liability for any breach, hindrance or delay in performance of its obligations under this Agreement which is caused by circumstances beyond its reasonable control including any act of God, actions or omissions of third parties not in the same group as the Party seeking to rely on this Clause (including hackers, suppliers, couriers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, seizure or forfeiture, breaking off of diplomatic relations or similar actions, national emergencies, terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workmen, unusual traffic volumes, unusual travel restrictions, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions (including cold, heat, wind, rain, snow, ice or fog), loss at sea, earthquake, volcano, ash cloud, natural disaster, accident, mechanical breakdown, third party software, collapse of building structures, failure of machinery (other than used by the relevant Party) or third party computers or third party hardware or vehicles, failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation ("Event of Force Majeure"), regardless of whether the circumstances in question could have been foreseen.
10.2 Each Party agrees to inform the other Party upon becoming aware of an Event of Force Majeure, giving details of the circumstances giving rise to the Event of Force Majeure.
10.3 The performance of each Party's obligations shall be suspended during the period that the circumstances persist and such Party shall be granted an extension of time for performance equal to the period of the delay.
10.4 Each Party shall bear its own costs incurred by the Event of Force Majeure.
10.5 If performance of any obligations are delayed under this Clause 10, each Party shall nevertheless accept performance as and when the other shall be able to perform.
10.6 If the Event of Force Majeure continues without a break for more than three months, either Party may terminate this Agreement immediately by notice to the other Party, in which event neither Party shall have any Liability by reason of such termination.
10.7 If BBG has contracted to provide identical or similar services or deliverables to more than one client and is prevented from fully meeting its obligations to the Client by reason of an Event of Force Majeure, BBG may decide at its absolute discretion which contracts it will perform and to what extent.
11.1 Any notice required or authorised to be given under this Agreement shall be in writing and shall be despatched by recorded delivery post or by overnight commercially recognisable courier or by facsimile addressed to the relevant Party at its address stated in this Agreement or at such other address or facsimile number as is notified by the relevant Party to the other for this purpose from time to time or at the address or facsimile number of the relevant Party last known to the other Party.
11.2 Any notice so given by recorded delivery post or by overnight commercially recognisable courier shall be deemed to have been served two Business Days after the same shall have been despatched by recorded delivery post or by overnight commercially recognisable courier and any notice so given by facsimile shall be deemed to have been served upon receipt of an answerback signal from the receiving machine, and in proving such service it shall be sufficient to prove that the letter or facsimile was properly addressed or numbered and, as the case may be, despatched or a confirmation of facsimile delivery receipt received.
12.1 Unless a Party expressly states in writing that it is waiving a particular power, right or remedy in a particular stated instance, no failure or delay or omission by either Party in exercising any power, right or remedy under this Agreement or at law shall operate as a waiver of such power, right or remedy; and no waiver in any particular instance shall extend to or affect any other or subsequent event or impair any powers, rights or remedies in respect of it or in any way modify or diminish that Party's other powers, rights or remedies under this Agreement or at law.
12.2 If any Clause or other provision in this Agreement shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall in no way affect any other Clause or provision or part of any Clause or provision, all of which shall remain in full force and effect.
12.3 Nothing in this Agreement shall create or be deemed to create a partnership, an agency or a relationship of employer and employee between the Parties.
12.4 A person who is not a Party to this Agreement has no rights under any law to enforce any term of this Agreement.
12.5 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. All dealings, correspondence and contacts between the Parties shall be made or conducted in the English language. In respect of any disputes:
12.5.1 If the Client is domiciled in the United Kingdom or European Union, the exclusive forum for settling any disputes which may arise out of or in connection with this Agreement shall be the English courts.
12.5.2 If the Client is not domiciled in the United Kingdom or European Union, any dispute which may arise out of or in connection with this Agreement shall be exclusively referred to and finally resolved by arbitration under the LCIA Rules. Those Rules are deemed to be incorporated by reference into this Clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English.
Version: May 2017