Terms & Conditions
These terms and conditions are between the client identified in the Scope of Work (the “Client”) and RCCO Creative Limited t/a &above (“&above”). By requesting any services from &above in any way, the Client agrees to be bound by these terms and conditions.
1. Definitions and interpretation
1.1 The following definitions shall apply:
means these terms and conditions (and any documents attached hereto or expressly incorporated by reference) together with the relevant Scope of Work signed by &above and the Client;
means the authorised representative appointed by each of the Client and &above as their respective project managers, whose details are set out in the SOW, or as otherwise notified to the other party in writing from time to time, which contact is responsible for the day to day management of the Services (and receipt thereof) and who is authorised to sign SOWs and approve any Change;
means the web and/or mobile application(s) identified as such in the SOW (if any);
means the Bribery Act 2010 and all other applicable UK legislation, statutory instruments and regulations in relation to bribery or corruption;
means any Content, methodology, know-how and/or processes which are:
(i) in existence prior to the date on which it is intended to use them for a Project; or
(ii) created by or for &above independently of a Project and which are intended to be reused across its business;
means between the hours of 9am to 5.30pm on a day, other than a Saturday, Sunday or public holiday;
means any change, amendment or alteration to the Scope of Work or Deliverables;
means any Content, materials and/or assets provided or made available (directly or indirectly) by the Client to be incorporated into or otherwise used in connection with the Services;
means the earlier of the date of signature of this Agreement or commencement of any Services;
means any and all information of a confidential or commercially sensitive nature (whether in oral, written or electronic form) including technical or other information imparted in confidence or disclosed by one party to the other or otherwise obtained by one party relating to the other’s business, finances, technology, know-how, intellectual property, assets, strategy, products, personnel and/or clients;
means any and all text, graphics, documents, copy, designs, videos, images, sound, data, and other materials (but excluding Websites and Application(s));
means the Content and other materials which are to be provided by &above as set out in a SOW;
means the fees payable as set out in the applicable SOW and any and all other amounts payable by the Client under this Agreement;
means an event beyond a party’s reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying it from performing its obligations hereunder, including war, revolution, terrorism, riot or civil commotion; strikes, lock outs or other industrial action; blockage or embargo; acts of or restrictions imposed by government or public authority; explosion, fire; flood, natural disaster, or adverse weather conditions; epidemic, pandemic or similar health crises;
means the project set out in the SOW;
means the outline timetable and sequence of events (if any) as set out in the SOW, as updated from time to time by written agreement of the parties;
means the strategy, content, design, development, editing, and/or animation services and any other services as set out in the SOW;
means the fees payable and other amounts payable under this Agreement for the Services, as set out in the Service Description Document;
means the scope of work document provided by &above and signed by the Authorised Contact (or other authorised representative) of each party;
means any Content of or created by a third party;
means value added tax, and any other tax imposed in substitution for it;
means the website identified as ‘the Website’ in the SOW (if any).
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 Each Scope of Work (and any Schedules and Annexes thereto) forms part of this Agreement and shall have effect as if set out in full in the body of this Agreement. In the event of any conflict, unless otherwise stated herein, the Scope of Work shall take priority, followed by:
a. the Data Processing Addendum at https://www.andabove.com/data-protection;
b. these terms and conditions; and
c. the terms of the Project email /Brief as approved by &above in writing. If there is any inconsistency between the terms of two Project emails/briefs, the terms of the later Project email/brief approved by &above will prevail.
1.4 A reference to writing or written includes email unless stated otherwise.
1.5 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. The Services
2..1 &above agrees to provide the Services in connection with the Project with reasonable care and skill and in accordance with the relevant SOW, subject to and in accordance with the terms of this Agreement.
2.2 Where the Deliverables include a Website or Application(s), &above shall use reasonable endeavours to ensure that such Deliverables do not contain any viruses or other harmful or intrusive programs or code upon delivery.
2.3 Notwithstanding any provision of a SOW, any dates for performance of the Services or delivery dates in respect of any Deliverables, whether set out in the Project Plan or otherwise, shall be estimates only and time for performance shall not be of the essence.
2.4 The Services shall not include any services not expressly set out in the applicable SOW.
2.5 In respect of Deliverables which comprise Content, &above shall provide to the Client an initial draft of such Deliverables for the Client to review. &above shall provide up to two rounds of revisions of such Deliverables in line with the Client’s reasonable feedback. If the Client does not approve such revised Deliverables, any further revisions shall be subject to additional Fees to be agreed between the parties in writing.
3. Client obligations
3.1 The Client shall:
a. co-operate in good faith with &above in all matters relating to the Services;
b. procure for &above, its agents, subcontractors, consultants and personnel, in a timely manner and at no charge, access to any locations, personnel, servers and/or networks as reasonably required by &above in the provision of the Services, including any such access as specified in a SOW;
c. provide to &above in a timely manner all data, documents, information, items and materials in any form required pursuant to a SOW or otherwise reasonably required by &above in connection with the Services and ensure that all such materials are complete and accurate;
d. respond to the reasonable requests of &above in a timely manner and promptly provide any required consent, approval or decision as requested by &above for the provision of the Services;
e. where any personnel, contractors or agents of &above are to attend any premises of the Client and/or its affiliates in the provision of the Services, inform &above in writing of all applicable health and safety and security requirements no less than 7 days before the commencement of the Services at such premises (and the Client shall be responsible for the health and safety of &above personnel, contractors and agents whilst at such premises);
f. be responsible for obtaining and maintaining all relevant licences, permissions and consents and comply with all relevant legislation as required to enable &above to provide the Services.
3.2 &above shall not be liable for any delay in the performance of or failure to perform its obligations under this Agreement or any SOW to the extent caused by any delay, act or omission of the Client, its affiliates or in each case their agents, subcontractors, consultants or personnel.
4. Websites and Applications
4.1 Where the Services include the creation of a Website or Application, the Client shall be provided a staging link for the Client to test the Website and/or the Application in a live environment for a period of 5 Business Days (the “Sprint Period”). The commencement date of the Sprint Period shall be agreed between the parties (each acting reasonably).
4.2 During the Sprint Period, the Client shall test and review the Website and/or Application(s) and &above shall use reasonable endeavours to remedy:
a. functional defects that restrict the user from successfully completing the core user journeys outlined in the UX phase agreed between the parties (for example, if a user cannot submit a form or access a page); and
b. security defects that compromise the security and integrity of the Website and/or Application (for example, where a package dependency needs to be updated or where or users have incorrect access to areas of the Application),
that are identified and logged by the Client in the feedback tool made available by &above during the Sprint Period (each, a “Non-Conformity”).
4.3 For the avoidance of doubt, &above shall not be responsible for (or required to remedy) any Non-Conformity or other issue caused by the Client and/or its networks or servers.
4.4 Any feedback or requests from the Client that are not a Non-Conformity shall be a Change and subject to additional Fees.
4.5 If &above is not reasonably able to remedy a material Non-Conformity within the Sprint Period, &above may, at its option:
a. provide to the Client a fair and reasonable pro-rata discount from the Fees taking into account the nature of the relevant Non-Conformity and impact on the functionality of the relevant Website and/or Application; or
b. attempt to remedy such outstanding Non-Conformity at its cost after the end of the Sprint Period.
4.6 The Client shall promptly provide written confirmation of its acceptance of the Website and/or Application at the request of &above. The Client shall not unreasonably delay its acceptance of the Website and/or Application.
4.7 The Client’s acceptance of the Website and/or Application shall occur at the earliest of:
a. the Client providing written acceptance to &above;
b. there being no further outstanding Non-Conformities at the end of the Sprint Period;
c. the Website and/or Application being used in a live environment or in commercial use for 30 days or more; and
d. expiry of the Sprint Period where the Client has failed to log any Non-Conformities, unless such failure is due to an act or default of &above.
4.8 The Client’s rights and remedies under this clause 4 shall be &above’s sole liability in respect of any non-conformities relating to any Website and/or Application.
5. Change control
5.1 All Changes to the Project or Scope of Work must be agreed by the Authorised Contacts in writing.
5.2 The Client acknowledges and agrees that a Change may result in additional Fees.
5.3 &above shall have no obligations in respect of any Change unless and until expressly confirmed by its Authorised Contact in writing.
6. Fees and payment
6.1 In consideration of the provision of the Services, the Client shall pay the Fees and expenses in pounds sterling in accordance with this clause 6.
6.2 In respect of any Fees calculated on a time and materials basis:
a. the daily fee rates set out in &above’s then current rate card shall apply and are calculated on the basis of a seven-hour day, worked during between 09.00 and 17.00;
b. &above reserves the right to charge overtime; and
c. &above shall maintain records relating to the time incurred and allow the Client to inspect such records within 7 days of request.
6.3 The Fees are exclusive of expenses, which shall be payable by the Client within 7 days of &above’s submission of an invoice therefore including:
a. the cost of hotel, travelling and any other ancillary expenses reasonably incurred by &above and/or its personnel, officers, contractors and agents in connection with the Services;
b. reasonable subsistence costs where any personnel, officers, contractors or agents of &above are involved in the provision of the Services after 8pm (as determined by the location of the relevant personnel, officers, contractors or agents);
c. the cost to &above of any materials, software or services procured by &above from third parties on behalf of the Client, and
6.4 &above shall request the Client’s prior written approval of any individual item of expense which exceeds £100. The Client acknowledges and agrees that &above may suspend the provision of the relevant Services until receipt of Client’s approval.
6.5 &above may increase its charges on an annual basis. Any such increase shall apply with effect from 30 days of the date of &above’s written notice thereof, save that such increase shall not affect the cost of any Services to be provided on a fixed cost basis as set out in a SOW.
6.6 All amounts due under this Agreement are exclusive of VAT (where applicable), sales or other tax applicable which shall be paid in addition by the Client at the rate and in the manner for the time being prescribed by law.
6.7 &above shall issue its invoices in accordance with the payment schedule set out in the SOW. If no payment schedule is set out in the SOW, &above may invoice the Client the Fees in full in advance.
6.8 The Client shall pay each of &above’s invoices in full within 30 days from the date of invoice or on the due date for payment specified in the SOW, if earlier.
6.8 The Client shall pay all amounts payable to &above under this Agreement into the bank account stipulated in the SOW by electronic funds transfer, unless otherwise notified by &above to the Client in writing in accordance with this Agreement.
6.9 The Client shall make all payments in full without any deduction, withholding or set off. If the Client is required by applicable law to deduct any amount from any payment to &above, the Client will increase the amount payable as necessary so that, after making all required deductions and withholdings, &above receives and retains (free from any liability for taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. The Client will provide proof of withholding tax remittance to the respective tax authority at the request of &above.
6.10 Where any sums due hereunder are not paid by the Client in full by the due date, &above may, without limiting any of its other rights or remedies:
a. charge interest on such sums from the due date until payment of the overdue sum, whether before or after judgement, at a rate of 4% above the base rate of Barclays Bank plc;
b. suspend all or part of the Services until payment has been received in full; and
c. withhold the release of any Deliverables.
7. Warranties
7.1 &above warrants and represents to the Client that:
a. it has the right, power and authority to enter into this Agreement and perform the Services;
b. the Deliverables (excluding any Client Content or Third Party Content incorporated therein) do not contain Content which is fraudulent, defamatory, libellous, threatening or harassing, obscene, indecent or pornographic or otherwise contrary to applicable law.
7.2 The Client warrants and represents to &above that:
a. it has the right, power and authority to enter into this Agreement and grant to &above the rights contemplated in this Agreement, and to receive the Services;
b. it has all rights and licences to provide the Client Content and for &above to use such Client Content in the provision of the Services and to grant all necessary licences to &above to develop the Services and provide the Deliverables incorporating or derived from such Client Content;
c. Client Content shall:
i. be, to the best of the Client’s knowledge and belief, true, complete and accurate and comply with all applicable laws and codes of practice (including in respect of data protection and advertising standards);
ii. not be fraudulent, defamatory, libellous, threatening or harassing, obscene, indecent or pornographic or otherwise contrary to applicable law;
iii. not, and &above’s use thereof in accordance with this Agreement shall not, infringe the Intellectual Property Rights of any third party; or
iv. not contain any viruses or other harmful or intrusive programs or other code.
7.3 Save as expressly set out in this Agreement, all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise are hereby excluded to the fullest extent permitted by law, including any condition of satisfactory quality or fitness for a particular purpose.
7.4 Any warranties given by &above shall be subject to the Client using the Services and Deliverables in compliance with this Agreement and any documentation supplied with it.
8. Intellectual Property Rights
8.1 As between the parties, the Client shall remain the owner of all Client Content. The Client grants to &above a non-exclusive, royalty free licence to use the Client Content in connection with the provision of the Services.
8.2 Subject to the Client’s payment of all Fees in accordance with this Agreement and clause 8.3, &above shall assign to the Client the Intellectual Property Rights in the Deliverables, but excluding any Background Materials or Third Party Content therein.
8.3 The assignment of Deliverables shall not include an assignment of (or any other rights to use) any raw footage created in connection with the Services. Such assignment or grant of rights shall be subject to the Client’s payment of additional Fees, as stated in the SOW.
8.4 Any Third Party Content provided to the Client shall remain the property of the relevant third party and, subject to the Client’s compliance with the terms of this Agreement including payment of all Fees, &above grants to the Client a non-exclusive, non-transferrable, royalty-free licence to use such Third Party Content for the purposes and for the duration set out in the SOW save that such licence to Third Party Content shall:
a. in the case of software, be a licence of object code only unless otherwise expressly provided;
b. be on such terms as &above may grant in accordance with the terms between &above and the Third Party Content licensor; and
c. be to the extent and for the purpose only of using and receiving the benefit of the relevant Deliverables and subject to any additional limitations as may be notified by the Client in writing prior to incorporation in the relevant Deliverables.
8.5 The Client acknowledges that all Intellectual Property Rights in the Background Materials shall be owned by and remain the property of and vested in &above. Subject to &above receiving payment of all Fees attributable to the Background Materials licensed under this clause, the Agency hereby grants to the Client a licence to use such Background Materials as are included in the Deliverables for the purposes of the Project or as otherwise set out in the SOW (and subject to any restrictions set out in the SOW).
8.6 The Client shall indemnify and keep indemnified, and hold harmless, &above against all claims, losses damages, costs and expenses (including reasonable legal and professional costs and expenses) incurred by &above arising out of or in connection with any action, demand or claim that use or possession of any Client Content in accordance with this Agreement infringes the Intellectual Property Rights of any third party.
8.7 &above shall indemnify and keep indemnified, and hold harmless, the Client against all claims, losses, damages, costs and expenses (including reasonable legal and professional costs and expenses) incurred by the Client as a result of or in connection with any action, demand or claim that use of the Deliverables (excluding any Client Content or Third Party Content therein) in accordance with this Agreement and for the purposes set out in the SOW infringes the Intellectual Property Rights of any third party.
8.8 Where one party (the “Indemnifying Party”) agrees to indemnify the other party (the “Indemnified Party”) under this clause 8, such indemnity is subject to the Indemnified Party complying with the following process in the event that a third party claim arises:
a. the Indemnified Party must promptly notify the Indemnifying Party in writing of such claim;
b. the Indemnified Party must not make any admission of liability, settlement or compromise without the prior written consent of the Indemnifying Party;
c. the Indemnified Party must give the Indemnifying Party express authority to conduct all negotiations and litigation and to defend and/or settle all litigation arising from such claim, provided that the Indemnifying Party regularly consults the Indemnified Party on the conduct and defence of the claim; and
d. the Indemnified Party must provide the Indemnifying Party with all available information and assistance in relation to such claim as the Indemnifying Party may reasonably require at the Indemnifying Party’s cost and expense.
8.9 &above shall not be liable under or in connection with this Agreement for any modifications, adaptations or amendments to any Deliverables made by the Client or by a third party on the Client’s behalf, nor in the event that any fault, error, destruction or other degradation in the Deliverables, save as expressly set out in this Agreement.
8.10 Notwithstanding any provision of this clause 8, &above shall retain all know-how obtained in connection with the Services and shall be free to use such know-how without restriction.
8.11 The terms of and obligations of this clause 8 shall survive the termination of this Agreement for any reason.
9. Limits on liability
9.1 The Client acknowledges that &above is not liable for any loss or damage incurred by the Client to the extent that this results from any delay by the Client (or persons acting on behalf of the Client) or any failure by the Client (or persons acting on behalf of the Client) to discharge its obligations under this Agreement.
9.2 Subject to the remainder of this clause 9, in no event shall the aggregate liability of any party (whether in contract, tort (including negligence) or otherwise) and in respect of all claims, losses and damages arising under or in connection with this Agreement exceed:
a. £1 million solely in respect of liability pursuant to clause 8; and
b. the total Fees payable under the relevant SOW in all other cases.
9.3 Subject to clause 9.4, neither party shall be liable under or in connection with this Agreement for any loss of profit, business opportunity, goodwill, data, anticipated savings or any special, indirect or consequential loss or damage whatsoever, even if such loss or damage is foreseeable. This clause 9.3 shall not limit or exclude the Client’s liability in respect of payment of any Fees due.
9.4 Neither party excludes or limits any liability for:
a. personal injury (including sickness and death) due to its negligence; or
b. fraud or fraudulent misrepresentation; or
c. any other liability to the extent the same cannot be excluded or limited by law.
10. Insurance
For the duration of this Agreement, &above will maintain appropriate insurance cover with a reputable insurance company and will provide to the Client upon request suitable evidence of insurance cover.
11. Term and Termination
11.1 This Agreement shall commence on the Commencement Date and continue until terminated in accordance with this clause 11.
11.2 Without prejudice to any other rights that it may have, &above may terminate this Agreement immediately on written notice if the Client has failed to pay any amount under this Agreement on the due date for payment and such amount remains unpaid ten Business Days after the Client has received a written notification from &above that the payment is overdue.
11.3 Either party may, without prejudice to its other rights and remedies, by notice in writing to the other party immediately terminate this Agreement if the other party:
a. is in material or persistent breach of any of its obligations under this Agreement and such breach is not remediable or, if that breach is capable of remedy, the other party has failed to remedy that breach within 30 days of receiving written notice requiring it to remedy that breach;
b. is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986 (IA 1986)) or becomes subject to a moratorium under IA 1986, Pt A1 or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or becomes subject to a restructuring plan under Part 26A of the Companies Act 2006 (CA 2006) or a scheme of arrangement under CA 2006, Pt 26 or any analogous event occurs in any applicable jurisdiction.
11.4 Either party may terminate a SOW on giving no less than 90 days prior written notice to the other party.
11.5 If the Client terminates a SOW pursuant to clause 11.4, it shall (notwithstanding such termination) pay to &above 50% of all remaining Fees payable pursuant to such SOW from the date of termination until the intended expiry date of such SOW immediately upon receipt of &above’s invoice therefore (in addition to continuing to pay all Fees when due during the notice period).
11.6 Upon expiry or termination of all SOWs, either party may terminate this Agreement on giving no less than 30 days’ written notice to the other party.
11.7 In the event of termination of this Agreement for any reason:
a. the Client shall immediately pay all outstanding invoices of &above;
b. &above shall promptly invoice the Client for all Services performed and Deliverables supplied but not yet invoiced and for any Fees payable by the Client pursuant to clause 11.5 and payment for such invoices shall be due immediately on receipt by the Client; and
c. All SOWs shall automatically terminate forthwith.
11.8 Each party shall promptly return or, at the other party’s option, destroy all the other party’s Confidential Information in its possession or under its control and all copies of such information.
11.9 The accrued rights and liabilities of the parties (including any rights in relation to breaches of contract) shall not be affected.
11.10 Any provision of this Agreement that either expressly or impliedly survives the expiry termination of this Agreement shall remain in full force and effect.
12. Personnel
12.1 All personnel of &above shall at all times remain the employees or subcontractors of &above (or of &above’s sub-contractor(s)) and shall at all times remain under the overall control of &above. The Client acknowledges and agrees that &above’s personnel are not employees or subcontractors of the Client, nor shall anything in this Agreement deem them employees of the Client.
12.2 The Client acknowledges and agrees that any persons named in a SOW shall be indicative only and that &above shall at all times have the right to substitute any person with another person of appropriate seniority and experience.
12.3 The Client acknowledges and agrees that all persons engaged in the provision of the Services shall use equipment (including laptops and telephones) provided by &above unless otherwise approved by &above in writing.
12.4 Where any personnel involved in the provision of the Services provide such Services from any premises of the Client, the Client acknowledges and agrees that:
a. such personnel shall be permitted to undertake such meetings, training and staff events as designated by &above from time to time; and
b. any holiday or absence requests shall be granted by &above at its sole discretion without reference to the Client.
12.5 Throughout the term of this Agreement and for a period of 12 months after its termination or expiry, the Client shall not (except with the prior written approval of &above) directly or indirectly approach, solicit or entice away (or attempt to approach, solicit or entice away) from &above or employ or engage or attempt to employ or engage or otherwise deal with any person who is, or has been, employed or engaged by &above and materially involved in the provision of any Services or Deliverables, other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the personnel of &above.
12.6 If the Client, directly or indirectly, employs or engages any person in breach of clause 12.5, the Client agrees to pay &above an amount equal to:
a. in respect of employees, the most recent annual salary payable to such person by &above; and
b. in respect of subcontractors, the aggregate fees paid to such subcontractor by &above in the 12 months prior to the Client entering into an arrangement with such subcontractor, and
the Client acknowledges and agrees that such payment is a reasonable pre-estimate of &above’s losses and shall be payable immediately upon employment or engagement of the relevant person.
13. Force Majeure
13.1 A party will not be liable if delayed in or prevented from performing its obligations hereunder due to Force Majeure, and the affected party will promptly notify the other of the Force Majeure event and its expected duration.
12.2 If, due to Force Majeure, a party is unable to perform a material obligation, or is delayed in or prevented from performing its obligations for a continuous period of more than 90 days, either party may, terminate this Agreement on giving no less than 30 days’ notice.
14. Data Protection
Each Party shall comply with its respective obligations, and may exercise its respective rights and remedies, pursuant to the Data Protection Addendum at https://www.andabove.com/data-protection.
15. Marketing and Promotion.
15.1 Save as otherwise expressly provided for in a SOW, the Client hereby grants to &above a non-exclusive, royalty free licence to use:
a. any Deliverables which have been broadcast, published, distributed or otherwise made available to the public; and
b. the Client’s name(s) and logo(s),
for the purposes of &above promoting its work and its business including on the &above website and social media pages, in credentials pitches and in its showreel. Any other use by &above shall be subject to the Client’s prior approval (not to be unreasonably withheld or delayed); and
15.2 If the Services include the development of a Website and/or Application, the Client shall permit &above to include a credit-mark (not to exceed 16px) on the footer of the Website stating “Made by &above”. The parties agree that the Client can opt against the credit-mark with the payment to &above of the higher of (i) 10% of the total Fees due for the relevant Website or Application; or (ii) £2,500 for each Website or Application.
15.2 &above requests that the Client provides a written Clutch.co review upon successful completion of the Project.
16. Confidential Information
16.1 Each party shall maintain the confidentiality of the other party’s Confidential Information and shall not without the prior written consent of the other use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than as necessary for the exercise of its rights and performance of its obligations under this Agreement.
16.2 Each party undertakes to disclose the other party’s Confidential Information only to those of its officers, personnel, agents and contractors to whom and to the extent to which such disclosure is necessary for the purposes contemplated under this Agreement; and procure that such persons are subject to appropriate obligations of confidentiality.
16.3 The provisions of this clause shall not apply to information which:
16.3 is or comes into the public domain through no fault of the recipient, its officers, personnel, agents or contractors;
a. is lawfully received by the recipient from a third party free of any obligation of confidence at the time of its disclosure;
b. is independently developed by the recipient, without access to or use of such Confidential Information; or
c. is required by law, by court or governmental or regulatory order to be disclosed provided that the relevant party, where possible, notifies the other party at the earliest opportunity before making any disclosure.
16.4 The obligations under this clause shall survive the expiry or termination of this Agreement for a period of three years thereafter.
17. Anti-bribery
17.1 Each party shall comply with all applicable bribery laws relating to prevention of bribery and corruption, and each shall use all reasonable endeavours to ensure that:
a. all of that party’s personnel;
b. all of that party’s subcontractors; and all others associated with that party,
involved in performing services for or on behalf of that party or otherwise involved with this Agreement so comply.
17.2 Without limitation to the foregoing:
a. neither party shall (directly or indirectly) offer or give or request, agree to receive or accept any bribe, other improper payment or advantage or bribe any UK or foreign public official in breach of applicable bribery laws; and
b. each party shall implement, maintain and enforce adequate procedures designed to prevent persons associated with that party engaging in conduct which contravenes the Bribery Act 2010.
17.3 Each party shall immediately notify the other as soon as it becomes aware of a breach or possible breach of any of the requirements in the foregoing subclauses.
17.4 The expressions ‘adequate procedures’, ‘associated with’ and ‘foreign public official’ shall be construed in accordance with the Bribery Act 2010 and associated guidance published under that Act.
18. Notices
18.1 Any notice or other communication given by a party under this Agreement shall be in writing. Notices may be given, and are deemed received by hand, on receipt of a signature at the time of delivery; by Royal Mail Recorded Signed For post, at 9.00 am on the second Business Day after posting; by Royal Mail International Tracked & Signed OR Royal Mail International Signed post, at 9.00 am on the fourth Business Day after posting; and by email, on the Business Day after sending to the correct address.
18.2 Notices and other communications shall be sent to the Authorised Contact details contained in the SOW. Any change to the contact details of a party shall be notified to the other party in accordance with clause 18.1.
19. Dispute resolution
If there is a dispute between the parties in relation to any matter under this Agreement, the parties’ respective Authorised Contacts shall meet to try to resolve any such dispute and if they fail to do so with a reasonable time the matter in dispute shall be referred to a senior manager of &above and the Client respectively, for them to try to resolve the matter in dispute, each acting reasonably and in good faith.
20. General
20.1 This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly incorporated by reference in this Agreement. Each party acknowledges that it has not relied on, and shall have no remedy in respect of, any representation (whether innocent or negligent) made but not expressly embodied in this Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
20.2 Each party is responsible for its legal and other costs in relation to the preparation and performance of this Agreement.
20.3 The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
20.4 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.
20.5 The Agreement is personal to the Client and the Client shall not assign, sub-contract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights under this Agreement, in whole or in part, without &above’s prior written consent.
20.6 Subject to clause 5 in respect of Changes, no amendment or variation of this Agreement will be valid unless agreed in writing and signed by an authorised signatory of each party.
20.7 If any clause in this Agreement (or part thereof) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced), the relevant clause (or part thereof) will apply with such deletion or modification as may be required to make it legal, valid and enforceable, and the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this Agreement as soon as possible.
20.8 Unless otherwise expressly agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
20.9 This Agreement is governed by the law of England and Wales. All disputes under this Agreement not otherwise resolved by the parties in accordance with the process set out in clause 24 (Dispute resolution) shall be subject to the exclusive jurisdiction of the courts of England and Wales.