1.1 The following definitions and rules of interpretation should be read in conjunction with the definitions in the Contract.
‘APL Service Providers’: APL its employees, agents, consultants and contractors.
‘Client Materials’: all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to APL in connection with the Service.
‘Deliverables’: any output of the Service to be provided by APL to the Client as specified in the Contract.
‘Intellectual Property Rights’: copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information and any other intellectual property rights, including all applications for (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.
‘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.
‘Third Party Providers’: Client, its agents, consultants and contractors (other than APL Service Providers) and their respective employees or any of them.
1.2 Paragraph headings shall not affect the interpretation of these conditions.
1.3 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, include the singular.
1.4 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.5 A reference to writing or written includes faxes and e-mail.
2. APPLICATION OF CONDITIONS
These conditions shall:
(a) apply to and be incorporated in the Contract; and
(b) so far as lawful to do so prevail over any inconsistent terms or conditions, save for the Special Terms, contained in or referred to in any other document produced by either APL or the Client relating to the Service, or implied by law, trade custom, practice or course of dealing.
3. COMMENCEMENT AND DURATION
APL shall provide the Service to the Client in accordance with the Contract for the Duration unless terminated earlier in accordance with condition 15 (Termination).
4. APL’S RESPONSIBILITIES
4.1 APL shall provide the Service using APL Service Providers who shall be suitably experienced to provide the Service.
4.2 APL shall procure that APL Service Providers shall:
(a) use reasonable endeavours to provide the Service and deliver the Deliverables to the Client in accordance with the Contract in all material respects;
(b) use reasonable endeavours to meet any timeline set out in the Contract but any dates shall be estimates only and time for performance by APL shall not be of the essence of the Contract;
(c) obtain and at all times maintain all licences and consents which may be required for the provision of the Service;
(d) perform the Service with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
(e) comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply from time to time to the provision of the Service;
(f) observe all health and safety rules and regulations and any other security requirements that apply at any location where the Service is to be delivered; and
(g) hold Client Materials in safe custody at its own risk, and in good condition until returned to the Client.
4.3 In respect of any part of the Service provided by APL it shall comply with the provisions of clause 4.2 (a) – (g).
5. CLIENT OBLIGATIONS
5.1 The Client shall:
(a) co-operate and ensure that any Third Party Providers shall co-operate with APL and APL Service Providers in all matters relating to the Event and the Service;
(b) provide to APL in a timely manner all documents, information, items and materials in any form required to enable the provision of the Service and ensure that they are accurate and complete in all material respects;
(c) as may be necessary be responsible for ensuring that Third Party Providers, Event attendees and all other persons associated with the Client have passports, visas, permits, medical certification and other relevant paperwork to enable their attendance and or performance at the Event;
(d) be responsible for considering its own potential liability and losses and putting in place insurance arrangements in relation to the Event;
(e) be responsible for ensuring that Third Party Providers and attendees comply with all health and safety and other rules and regulations from time to time notified to it by APL on its own behalf or on behalf of any APL Service Provider; and
(f) be responsible for and indemnify APL in respect of any tax, duty or other impost in respect of the provision of the Service.
5.2 If APL’s performance of its obligations under the Contract is prevented or delayed by any act or omission of a Third Party Providers, then, without prejudice to any other right or remedy it may have, APL shall be allowed an extension of time to perform its obligations equal to the delay caused by the Client.
6. SERVICE MANAGERS
6.1 APL Service Manager shall have authority to contractually bind APL on all matters relating to the Service (including by signing a Change Order). APL may replace that person from time to time where reasonably necessary in the interests of APL’s business.
6.2 The Client Service Manager shall have the authority to contractually bind the Client on matters relating to the Service (including by signing a Change Order) The Client may replace that person from time to time where reasonably necessary in the interests of the Client’s business.
7. CHANGE CONTROL
7.1 If either party wishes to make a change to the Service it shall provide the other with a draft Change Order.
7.2 No proposed changes shall come into effect until a Change Order setting out the proposed changes and the effect that those changes will have on:
(c) Project timeline; and
(d) any of the terms of the Contract.
has been agreed and signed by the parties
8. COST AND PAYMENT
8.1 In consideration of the provision of the Service by APL, the Client agrees to pay the Cost.
8.2 APL shall invoice the Client for the Cost at the intervals specified in the Contract. If no intervals are so specified APL shall invoice the Client at the end of each month for Service performed during that month.
8.3 The Client shall pay each invoice submitted to it by APL within 30 days of receipt to a bank account nominated in writing by APL from time to time.
8.4 Without prejudice to any other right or remedy that it may have, if the Client fails to pay APL any sum due under the Contract on the due date:
(a) the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest shall accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%;
(b) APL may suspend all or part of the Service or any other contract between the parties until payment has been made in full.
8.5 All sums payable to APL under the Contract:
(a) are exclusive of VAT, and the Client shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
(b) are exclusive of any other tax, duty or impost relating to the provision of the Service; and
(c) 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).
8.6 All sums payable to APL under the Contract shall become due immediately on its termination, despite any other provision of the Contract.
9.1 APL may agree to postpone performance of the Service to a time to be agreed but upon condition that the Client will pay the Costs to APL for:
(a) Service performed; and
(b) Expenses incurred; and
(c) Payments and expenses due to the APL Service Providers.
In the case of (a) and (b) above Costs shall be determined by reference to the period from the Date to the date of postponement but in case of (c) above Costs shall be determined by APL’s liability to APL Service Providers.
9.2 APL will endeavour to negotiate postponement of its contracts with APL Service Providers but if unable to do so payment at condition 9.1(c) may include damages for breach of contract.
9.3 If Service provided to date of postponement cannot be used or applied in the postponed performance of the Contract APL may charge the Client in respect of such of the Service as has to be repeated.
10.1 If the Client wishes to cancel the Contract the following provisions in this condition 10 shall apply.
10.2 The Client shall give APL notice of cancellation with reasons. If APL accepts that notice the Client shall pay APL if notice received:
(a) More than 90 days before the Event Start Date 50 percent of the Cost.
(b) Between 90 to 45 days before the Event Start Date 75 percent of the Cost.
(c) Less than 45 days before the Event Start Date 100 percent of the Cost.
10.3 The Cost for the purposes of condition 10.2 and 10.5 shall be the Cost as varied by any Change Order at the date of cancellation.
10.4 APL may cancel by notice if it reasonably believes that the Service cannot be provided due to matters which materially impact on:
(a) the integrity and reputation of APL or APL Service Providers;
(b) safety or security of the Event; or
(c) legality of the Service
and which are not capable of reconciliation or remedy.
10.5 Upon cancellation by APL in accordance with condition 10.4 APL shall be entitled to payment on the same basis as if the Service had been postponed in accordance with condition 9.1.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 In relation to the Deliverables:
(a) APL and its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Client Materials;
(b) APL grants the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, non-transferable, royalty-free licence for the Duration to copy and use the Deliverables (excluding the Client Materials) for the purpose of receiving and using the Service and the Deliverables; and
11.2 In relation to the Client Materials, the Client:
(a) and its licensors shall retain ownership of all Intellectual Property Rights in the Client Materials; and
(b) grants APL a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and use the Client Materials for the Duration for the purpose of providing the Service to the Client.
11.3 APL warrants that the use of the Service and the Deliverables by the Client shall not infringe any rights of third parties to the extent that infringement results from copying.
11.4 The Client warrants that the receipt and use of the Client Materials in the performance of the Contract by APL and APL Service Providers shall not infringe any rights of third parties to the extent that infringement results from copying.
11.5 Either party (the Indemnifying Party) shall indemnify the other (the Indemnified Party) in full against all liabilities, costs, expenses, damages and losses (including 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
(a) the Client, where it is the Indemnified Party and APL is the Indemnifying Party arising out of or in connection with any claim brought against the Client for actual or alleged infringement of a third party’s Intellectual Property Rights, to the extent that the infringement or alleged infringement results from copying, arising out of, or in connection with, the receipt, use or supply of the Service and the Deliverables; or
(b) APL where it is the Indemnified Party and the Client is the Indemnifying Party arising out of or in connection with any claim brought against APL or APL Service Providers for actual or alleged infringement of a third party’s Intellectual Property Rights, to the extent that the infringement or alleged infringement results from copying, arising out of, or in connection with, the receipt or use in the performance of the Contract of the Client Materials
11.6 If either party the Indemnifying Party is required to indemnify the other party the Indemnified Party under this condition 11 the Indemnified Party shall:
(a) notify the Indemnifying Party in writing of any claim against it (IPR Claim);
(b) allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPR Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld;
(c) provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party’s costs so incurred; and
(d) not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
11.7 The Client shall have no claim under the indemnity at condition 11.5(a) to the extent the infringement arises from:
(a) the use of the Client Materials in the development of, or the inclusion of the Client Materials in any Deliverable;
(b) any modification of the Deliverables or Service, other than by or on behalf of APL; and
(c) compliance with the Client’s brief or other instructions.
12. DATA PROTECTION
12.1 Both parties will comply with all applicable requirements of the UK Data Protection Legislation.
12.2 The parties have determined that for the purposes of UK Data Protection Legislation APL shall process the personal data as processor on behalf of the Client
13.1 If APL and the Client have entered into an NDA prior to Contract the provisions of that NDA shall be deemed repeated herein.
13.2 APL may refer to the Client as being a Client of APL in Client reference lists and sales presentations but shall not refer to the Client in any advertising or press release without the prior written consent of the Client.
14. INSURANCE, LIMITATION OF LIABILITY, INDEMNITY
14.1 The Client acknowledges that the Service will be provided by APL and APL Service Providers.
14.2 APL shall maintain in force insurance with a reputable insurance company in respect of professional indemnity and public liability to cover any liabilities that may arise under or in connection with the Contract during its term in the amount of the Cover and shall, on the Client’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
14.3 APL shall procure that APL Service Providers provide adequate professional indemnity and public liability cover in relation to that part of the Service they will provide.
14.4 The restrictions on liability in this condition 14 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
14.5 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
14.6 Nothing in these conditions limits any liability which cannot legally be limited.
14.7 Nothing in this this condition 14 shall limit the Client’s payment obligations under the Contract.
14.8 APL shall have no liability to the Client where liability arises due to:
(a) Third Party Providers failing to give timely instructions to APL;
(b) Third Party Providers failing to adopt, implement or comply with the Recommendations;
(c) any fault or neglect of Third Party Providers, attendees or any other persons associated of the Client
(d) loss or damage to personal property of Third Party Providers, attendees or any other persons associated of the Client save where directly caused by the neglect or default of APL or APL Service Providers.
14.9 In so far as liability of APL:
(a) is not insured; or
(b) if insured, the claim is refused by the insurers due to no act omission or default of APL
then APL’s total liability to the Client for any loss or damage shall not exceed £[Amount/[X% Cost].
(c) if insured, the claim exceeds the amount insured or the amount which the insurers will pay then APL’s total liability to the Client in respect of loss or damage shall not exceed £[Amount/[X% Cost] in addition to the sum insured or the sum paid.
14.10 APL will not be liable for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
14.11 All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.
14.12 The Client shall indemnify APL against any losses, damages, costs (including legal fees) and expenses incurred by or awarded against APL as a result of a breach of the Contract by Third Party Providers howsoever arising or any negligent or wrongful act of Third Party Providers.
14.13 APL or the Client shall have no liability under the Contract if it does not give notice of claim within 3 months of a date that it became aware or should have become aware of its having grounds to make a claim. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
15.1 Without prejudice to any other right or remedy available to APL, it may terminate the Contract or suspend the Service under the Contract as the case may be if:
(a) the Client fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
(b) the Client commits a material breach of any term of the Contract (other than failure to pay any amounts due under the Contract) and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or
(c) the Client repeatedly breaches any of the terms of the 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 the Contract; or
(d) an order is made or a resolution is passed for the winding up of the Client, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the Client; or
(e) an order is made for the appointment of an administrator to manage the affairs, business and property of the Client, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Client, or notice of intention to appoint an administrator is given by the Client or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
(f) a receiver is appointed of any of the Client’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the Client, or if any other person takes possession of or sells the Client’s assets; or
(g) the Client makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or
(h) the Client takes or suffers any similar or analogous action to any of the foregoing events set out in 15.1(e)-(h) to occur in any jurisdiction in consequence of debt.
(i) the Client suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
15.2 For the purposes of condition 15.1(c), 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 the Contract. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
15.3 Without prejudice to any other right or remedy available to the Client, it may terminate the Contract if the provisions 15.1 (b) to (i) apply to APL and in their interpretation ‘APL is substituted for ‘the Client’.
16. EFFECT OF TERMINATION
Any provision of the Contract which expressly or by implication is intended to come into or continue in force on or after termination of the Contract, shall remain in full force and effect and notwithstanding the generality of the foregoing on termination or expiry of the Contract, the following conditions shall continue in force: condition 1 (Interpretation), condition 11 (Intellectual Property Rights), condition 13 (Confidentiality), condition 14 (Limitation Of Liability), condition 16 (Effect Of Termination), condition 19 (Waiver), condition 20 (Severance), condition 25 (Governing Law and Jurisdiction).
16.1 Termination of the Contract, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
16.2 On termination of the Contract for any reason:
(a) the Client’s right to receive the Service shall cease automatically.
(b) the Client shall immediately pay any outstanding unpaid invoices and interest due to APL.
(c) APL shall submit invoices for any Service that it has supplied, but for which no invoice has been submitted, and the Client shall pay these invoices immediately on receipt.
(d) the Client shall return all of APL’s or APL Service Providers’ equipment and materials. Until they have been returned the Client shall be solely responsible for their safe keeping; and
(e) APL shall on request return any of the Client Materials not used up in the provision of the Service. Until they have been returned APL shall be solely responsible for their safe keeping.
Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
18. FORCE MAJEURE
18.1 APL reserves the right to defer the date for provision of Service, or to cancel the Contract if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including without limitation pandemic, national epidemic, strikes, lock-outs or other industrial disputes (whether involving the workforce of APL or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
18.2 If cancellation occurs under condition 18.1, all sums paid to APL by the Client under the Contract shall be refunded to the Client, except that APL shall be entitled to payment on a quantum meruit basis for all Service provided before termination, provided that APL takes all reasonable steps to mitigate the amount due.
19.1 A waiver of any right under the Contract is only effective if it is in writing and signed by or on behalf of the waiving party, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
19.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
If any provision of the Contract (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, it shall be deemed deleted and the other provisions of the Contract shall remain in force.
21. ENTIRE AGREEMENT
21.1 Each party acknowledges that, in entering into the Contract, it does not rely on any statement, representation, assurance or warranty (Representation) of any person (whether a party to the Contractor not) other than as expressly set out in the Contract.
21.2 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.
21.1 The Client shall not, without the prior written consent of APL, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
21.2 APL may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract
23. THIRD PARTY RIGHTS
The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
Any notice required to be given pursuant to the Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the address of the party as set out in these conditions, or such other address as may be notified by one party to the other. A notice delivered by hand is deemed to have been received when delivered (or, if delivery is not in business hours, 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
25. GOVERNING LAW AND JURISDICTION
APL and the Client agree to submit to the jurisdiction of the English courts and that the Contract is to be governed and construed according to English law.