1. AGREEMENT AND INTERPRETATION
These terms of business (“Conditions”) and the Quote form part of Your Agreement with Keywords. By signing the Quote or confirming Your acceptance of the Quote in writing, You accept the Agreement, which applies to the exclusion of all other terms, including without limitation any terms and conditions or other legal terms sent by You to Keywords in respect of the Services. In the absence of Your signature on the Quote or Your acceptance of the Quote in writing, Your acceptance of the Services shall constitute acceptance of the Agreement.
1.1. In this Agreement the following defined terms apply:
1.1.1. “Adequacy Decision” means a finding under Article 25(2) of the Data Protection Directive that a country or territory ensures an adequate level of protection within the meaning of Article 25 of the Data Protection Directive or (as applicable) a finding under Article 45(1) of the GDPR that a country, a territory or one or more specified sectors within that country, or the international organisation in question ensures an adequate level of protection within the meaning of Article 45 of the GDPR.
1.1.2. “Agreement” means the Quote together with these Conditions and any applicable Service Annexe(s).
1.1.3. “Applicable Laws” means all applicable laws, statutes, orders, rules, provisions, regulations, directives and guidelines that have legal effect, whether local, national, international or otherwise, existing from time to time, including any requirements of any applicable regulator.
1.1.4. “Business Day” means a day (other than a Saturday or Sunday) on which banks are generally open in England for the transaction of normal banking business.
1.1.5. “Commencement Date” is as defined in the Quote.
1.1.6. “Confidential Information” means any information disclosed by a Party to the other Party, either directly or indirectly, in writing, orally, electronically or by inspection of tangible objects (including without limitation documents, business plans, financial projections, prototypes, drawings, designs, engineering, technical, sales programming and consumer data and product specifications, manuals, objects of intellectual property rights, patent, copyright, trade secret, design, marketing plans, commercials, written materials and compositions, computer or software programs, studies, business plans, budgets and forecasts).
1.1.7. “Customer Materials” means the materials (in printed or digital format), if any, to be provided by You to enable Keywords to provide the Services, as set out in the relevant Service Annex and/or Quote.
1.1.8. “Data Protection Directive” means Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data.
1.1.9. “Data Protection Laws” means the Data Protection Act 2018, GDPR and any relevant law implemented as a result of GDPR.
1.1.10. “Defect Notice” means the notice defined in clause 5.2.
1.1.11. “Deliverables” means the materials which Keywords is required to deliver to You and which are specified in the Quote.
1.1.12. “Dispute” is defined in clause 23.2.
1.1.13. “Event of Force Majeure” means, in relation to a Party claiming to be subject to it, an event outside the reasonable control of that Party and which causes that Party to be unable to comply with all or a material part of its obligations under this Agreement, but excluding any obligation to make a payment pursuant to this Agreement.
1.1.14. “Fees” means the amounts payable by You to Keywords pursuant to clause 7 and the Quote.
1.1.15. “GDPR” means Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
1.1.16. “Group” in respect of any undertaking, means that undertaking, any holding company of such undertaking from time to time and any subsidiary of any of the foregoing from time to time and “member of its Group” shall be construed accordingly.
1.1.17. “Intellectual Property Rights” means patents, trademarks, service marks, rights in logos, rights in get-up, trade names, internet domain names, rights in designs, copyright (including rights in computer software) and moral rights, database rights, semi-conductor topography rights, utility models, rights in know-how and other intellectual property rights, in each case whether registered or unregistered, and all rights or forms of protection having equivalent or similar effect anywhere in the world and registered includes registrations and applications for registration.
1.1.18. “Keywords” means KEYWORDS INTERNATIONAL LIMITED, a company incorporated in Ireland under company number 286266 whose registered office is at Whelan House, South County Business Park, Leopardstown, Dublin 18, Ireland, any subsidiary or any holding company of Keywords International Limited, and any subsidiary of a holding company of Keywords International Limited (also referred to in these Conditions as “We” or “us”).
1.1.19. “Keywords Know-how” means all knowledge, know-how, skills and techniques which Keywords: (1) has gained from providing services similar to the Services; (2) will use to provide the Services; and (3) will gain from providing the Services.
1.1.20. “Non-adequate Country” means a country or territory which is outside the European Economic Area and in respect of which there has not been an Adequacy Decision.
1.1.21. “Parties” means You and Keywords and “Party” means any one of them.
1.1.22. “Privacy Notice” means the information notice required to be supplied to Data Subjects under Data Protection Laws detailing the relevant Processing and provided at a time, in a form and at all times containing content, which is compliant with the requirements of Data Protection Law and relevant guidance issued by the Article 29 Working Party/European Data Protection Board and/or the Information Commissioner’s Office.
1.1.23. “Quote” means the document or email sent to You by Keywords which may set out, without limitation, the Fees, the Services and the Deliverables.
1.1.24. “Representatives” means an individual from each Party who is authorised to make a binding commitment to the other Party in relation to this Agreement and its obligations, as set out in the Quote or as agreed between the Parties from time to time.
1.1.25. “Residential Address” means the residential address of any Keywords’ personnel.
1.1.26. “Services” means the services identified in the Quote and described in more detail in the applicable Service Annexe(s).
1.1.27. “Specifications” means, in relation to a Deliverable, the functional, operational or technical specifications, if any, set out in the Quote or in an evaluation report.
1.1.28. “Term” means the duration of this Agreement as determined in accordance with clause 2.
1.1.29. “You” or “Your” means the entity identified in the Quote as the recipient of the Services.
1.2. Words importing the singular shall include the plural and vice-versa; words denoting persons shall include bodies corporate and unincorporated associations of persons and vice-versa; any reference to “in writing” includes electronic mail (email).
1.3. Reference to any statute or statutory provision is, except where otherwise stated, to a United Kingdom statute or statutory provision. Such reference includes any consolidation or re-enactment, modification of the same, any statute or statutory provision of which it is a consolidation, re-enactment, modification or replacement and any subordinate legislation in force under any of the same from time to time.
This Agreement comes into force on the day that You either sign the Quote or confirm Your acceptance of the Quote in writing and shall continue to be in force (subject to early termination in accordance with its terms) until all Services have been completed and all Fees have been paid. Keywords reserves the right to wait until it receives a Quote signed by You, before Keywords commences delivering the Services.
3. PROVISION OF SERVICES
3.1. In consideration of the Fees, Keywords will provide the Services, subject to You providing Keywords the Customer Materials (if any) in good time and subject to You complying with the assumptions set out in the relevant Service Annexe(s).
3.2. Unless expressly stated to the contrary in the Quote, Keywords reserves the right to allocate the Services or part thereof to any member of the Keywords’ Group to perform during any available shift, provided that such allocation shall not prejudice Keywords’ obligations pursuant to this Agreement.
3.3. Any Keywords’ personnel may, by mutual agreement in writing between the Parties from time to time, undertake the provision of the Services from their Residential Address. Notwithstanding any terms to the contrary in this Agreement, and provided that Keywords has taken reasonable steps and precautions to ensure that the personnel undertaking the provision of the Services from their Residential Address, as far as reasonably practicable, take such security measures as may be mutually agreed in writing by the Parties from time to time or otherwise follow good industry practice in such respects, Keywords shall not be liable for any breach of any requirements around security, whether pursuant to clause 10.2.1 or otherwise, to the extent that such breach arises as a result of Keywords’ personnel undertaking the provision of the Services from a Residential Address, save where such breach arises as a result of the gross negligence or wilful misconduct on the part of Keywords’ personnel.
3.4. After completing the Services, Keywords will, in relation to the Customer Materials: (1) magnetically bulk erase or otherwise render them unreadable (destroy) and discard discs or similar magnetic media; (2) render them unreadable (destroy) and discard test candidate CD-ROMs or similar pre-release optical media; or (3) destroy (shred) any documentation supplied by You and duplicated by Keywords for the purposes of testing.
The Quote may set out timelines or deadlines for the Services, which, unless expressly stated to be final, are estimates only and time is not of the essence in respect of the Services.
5. ACCEPTANCE OF DELIVERABLES
5.1. You have the right to test the Deliverables against any specifications that have been agreed in writing with Keywords.
5.2. If You reasonably believe that a Deliverable does not meet the Specifications, You must notify Keywords in writing within ten (10) Business Days of receipt of that Deliverable with all relevant details (“Defect Notice”). After Keywords has received a Defect Notice from You, We will either: (1) inform You in writing that we do not agree with Your reasons, in which case the matter shall be dealt with in accordance with the provisions of clause 23.2; or (2) re-submit the relevant Deliverable within twenty (20) Business Days of receiving Your Defect Notice.
5.3. If Keywords does not receive a Defects Notice within ten (10) Business Days of Your receipt of any Deliverable, that Deliverable will be deemed to be accepted.
6. INTELLECTUAL PROPERTY
6.1. Unless expressly set out in the Quote, neither Party shall have any claim or interest in the other Party’s Intellectual Property Rights and You agree that all rights in Keywords Know-how are proprietary to Keywords and no title or proprietary rights in Keywords Know-how are hereby or will be transferred to You.
6.2. All Customer Materials are provided by You on a non-exclusive, world-wide and royalty-free basis.
6.3. Subject to clause 6.1 and full payment of all Fees by You in accordance with the provisions of clause 7, Keywords hereby assigns to You all Intellectual Property Rights, title and interest in the Deliverables.
6.4. The Parties agree and acknowledge that the Deliverables are “works made for hire” for You. However, if, for any reason, a the Deliverable is not deemed to be a “work made for hire”, We shall waive any and all moral rights in and to such Deliverable which we may acquire under the Agreement or by operation of law.
6.5. Keywords hereby indemnifies You against all actions, claims, losses, costs, damages and expenses (including without limitation, all reasonable and actually incurred legal fees, costs or expenses and any compensation, costs or disbursements paid by You to compromise or settle any action or claim) suffered or incurred by You and arising directly as a result of a claim by a third party that the supply of the Deliverables by Keywords is a breach of that third party’s Intellectual Property Rights.
6.6. You hereby indemnify Keywords on demand against all actions, claims, losses, costs, damages and expenses (including without limitation, all reasonable and actually incurred legal fees, costs or expenses and any compensation, costs or disbursements paid by Keywords to compromise or settle any action or claim) suffered or incurred by Keywords and relating to a claim by a third party that Keywords’ use of the Customer Materials in the course of providing the Services infringes that third party’s Intellectual Property Rights.
7. FEES, EXPENSES AND PAYMENT
7.1. In consideration of the Services, You agree to pay Keywords the Fees in accordance with this clause 7 and the Quote, which shall be exclusive of VAT but inclusive, subject to clause 7.6, of all other taxes, imposts and fees. If VAT is payable it shall be separately identified on the invoice and shall be payable by the relevant Party subject to receipt of a valid VAT invoice from the other Party.
7.2. Payment for an invoice will be made by You to Keywords no later than thirty (30) Business Days from the date of receipt of that invoice, or as otherwise agreed by the Parties in writing. Other payment terms for the Fees may be set out in the Quote.
7.3. You shall, within ten (10) Business Days of receipt of an invoice, notify Keywords in writing if You, acting reasonably, have a query in respect of that invoice and wish to withhold payment of it, or a part of it, such notice to state in full Your reasons for disputing the relevant amount.
7.4. Any query submitted pursuant to clause 7.3 shall be discussed between the Parties’ Representatives for a period of ten (10) Business Days. If the query is resolved within such period, the amount in question shall be paid immediately and if it is not resolved in such period, it shall be treated as a Dispute, in accordance with the provisions of clause 23.3.
7.5. If an invoice is unpaid as at the due date and Keywords has not received notification from You in accordance with clause 7.3, Keywords may:
7.5.1. at its option and without prejudice to any other remedy at any time after payment has become due, temporarily suspend the provision of any further Services; and/or
7.5.2. charge interest on all overdue invoices, which shall accrue from the date when payment becomes due until the date of payment at a rate of 3% per annum above the base rate for the time being of Barclays Bank plc (irrespective of whether the date of payment is before or after any judgment or award in respect of the same), and such interest shall accrue on a daily basis and be payable on demand.
7.6. In the event that withholding tax is payable in respect of the Fees, You shall in the first instance provide Keywords with such assistance as is reasonably required and requested by Keywords in order for a dispensation from the payment of such tax to be obtained, including without limitation obtaining and completing any ‘double taxation’ forms applicable to the securing of such dispensation. In the event that such dispensation cannot be secured, You shall deduct the required withholding tax from the amounts payable to Keywords, and pay such taxes to the appropriate authority. You shall thereafter provide Keywords with all reasonable assistance (including the execution of documents) as may be required to enable Keywords to reclaim the withholding tax paid.
7.7. Unless expressly set out in the Quote, Fees are exclusive of expenses, which shall be agreed by the Parties prior to Keywords incurring them.
8.1. Each Party will treat as confidential all Confidential Information obtained from the other under this Agreement. The Parties agree that they will not without the prior written consent of the other disclose Confidential Information to any person or use the same except for the purposes of complying with their respective obligations pursuant to this Agreement. Parties recognize that a breach of the confidentiality obligations set out herein, or if a Party commences to exploit (or cause to be exploited) or use (or cause to be used) parts of the Confidential Information, prior to or without acquiring any right to do so from the disclosing Party on the basis of a written agreement, shall cause significant damages to the other Party. In such case Parties retain the right to claim full compensation of the damages causes by the breach, without prejudice to any other rights Parties may have according to Applicable Laws.
8.2. Clause 8.1 does not prohibit disclosure of Confidential Information to:
8.2.1. The receiving Party’s own personnel (including employees, agents and permitted contractors) who need to know of the Confidential Information provided that such personnel are first made aware of the confidential nature of the Confidential Information and the receiving Party’s obligations in relation to it and themselves agree in writing to treat the Confidential Information confidentially; or
8.2.2. the receiving Party’s auditors, professional advisers, HM Revenue & Customs (or an analogous body in a different jurisdiction) and any other person having a statutory or regulatory right to request and receive that information.
8.3. Clause 8.1 does not apply to information which the receiving Party can show by reference to documentary or other evidence:
8.3.1. was rightfully in its possession before the start of discussions between the Parties relating to this Agreement;
8.3.2. is already public knowledge or becomes so at a future date (otherwise than as a result of breach of clause 8.1);
8.3.3. is received from a third party who is not under an obligation of confidentiality in relation to the information; or
8.3.4. is developed independently without access to, or use of or knowledge of, the Confidential Information.
8.4. The obligations of confidentiality under this clause 8 shall survive the termination of this Agreement until such time as the Confidential Information enters the public domain otherwise than through the fault of the recipient Party.
9. RESTRICTIVE COVENANTS
Neither Party will, during the Term and for a period of twelve (12) months after the termination or expiry of the Agreement, solicit or engage the employment or services of any employee or contractor of the other Party or with whom that Party may have come into contact as a result of the Agreement without the consent of the other Party, except that nothing shall prevent either Party from employing any employee or contractor of the other Party who replies to a general recruitment advertisement.
10. WARRANTIES AND INDEMNITIES
10.1. Each of the Parties hereby warrants and undertakes to the other that it has the power, has taken all necessary action to allow it, and has all governmental and regulatory authorisations, licences, approvals and registrations necessary for it to enter into and perform this Agreement and to permit the payments contemplated by this Agreement.
10.2. Keywords warrants and represents to You that:
10.2.1. it will provide the Services using reasonable skill and care; and
10.2.2. it will not incorporate a third party’s material into the Deliverables without Your prior written approval.
10.3. You warrant and represent to Keywords that the Customer Materials, if any, do not infringe a third Party’s Intellectual Property Rights or other proprietary rights.
10.4. Other than expressly set out in this Agreement, Keywords makes no representations and gives no warranties, guarantees or undertakings in relation to the Services or the Deliverables. All other warranties and conditions, express or implied, are expressly excluded from this Agreement.
11.1. Nothing in this clause shall exclude or limit a Party’s liability for death or personal injury or fraud or any matter for which it would be unlawful for the Parties to exclude liability.
11.2. Subject to clause 11.1, Keywords’ liability in respect of breach of contract or breach of duty, tort or fault or negligence or otherwise whatsoever and/or howsoever arising out of or in connection with this Agreement shall be limited to the lesser of: (i) the value of the Fees paid by You in respect of the Service in relation to which the alleged breach occurred during the 12 month period immediately preceding the breach giving rise to the liability; and (ii) €500,000.
11.3. Notwithstanding any other provision in this Agreement, in no event shall either Party be liable to the other Party for:
11.3.1. any lost revenue, lost profits, business, opportunity or anticipated savings, loss of goodwill or injury to reputation, loss of data and/or loss of use of any data, replacement goods, loss of technology rights or services; or
11.3.2. incidental, punitive, indirect or consequential damages arising from or related to the performance of its obligations under this Agreement,
11.3.3. even if advised of the possibility of such damages, whether under contract, tort (including negligence), strict liability or otherwise.
12. TERMINATION AND CONSEQUENCES
12.1. Without limiting any other remedy available to it, a Party (the “Terminating Party”) may terminate the Agreement with immediate effect by giving written notice to the other Party (the “Non-terminating Party”):
12.1.1. at any time if the Non-terminating Party is in material or persistent breach of any of the provisions of the Agreement, which, if remediable, is not remedied within twenty (20) Business Days or such alternative period as may be agreed between the Parties, following the receipt of such written notice; or
12.1.2. at any time if the Non-terminating Party is unable to pay its debts (within the meaning of section 123(1) of the Insolvency Act 1986) or an order is made or a resolution passed for its liquidation, winding-up or dissolution (otherwise than for the purpose of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer is appointed over it or all or any substantial part of its assets or takes formal steps towards making any kind of composition, compromise or arrangement involving it and any of its creditors, or anything analogous to the foregoing shall occur in any jurisdiction;
12.1.3. pursuant to clause 14.3.2.
12.2. Keywords may, in addition, terminate the Agreement by immediate written notice to You in the event that You have not paid any Fees on the due date, other than Fees disputed in accordance with clause 7.3.
12.3. The following clauses shall survive termination or expiry of this Agreement: 1 (Agreement and Interpretation), 4 (Timelines), 5 (Acceptance of Deliverables), 6 (Intellectual Property), 7 (Fees, Expenses and Payment), 8 (Confidentiality), 9 (Restrictive Covenants), 10 (Warranties and Indemnities), 11 (Liability), 12 (Termination and Consequences), 13 (Data Protection), 16 (Notices) and 23 (Applicable Law and Dispute Resolution).
13. DATA PROTECTION
13.1. In this clause 13, the terms “Controller”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Process”, “Processed”, “Processing”, “Processor” and “Supervisory Authority” have the meaning given to them in the GDPR.
13.2. The Parties acknowledge and agree that for the purposes of this Agreement You are the Controller and Keywords is a Processor in respect of all Your Personal Data Processed pursuant to this Agreement.
13.3. You shall comply with Your obligations under Data Protection Laws in respect of all Personal Data Processed pursuant to this Agreement.
13.4. You warrant and represent that:
13.4.1. all Personal Data which You transmit to Keywords is transmitted in accordance with Applicable Laws; and
13.4.2. You have and shall maintain throughout the term of this Agreement all appropriate, lawful bases to use such Personal Data in accordance with this Agreement, including ensuring the provision of appropriate Privacy Notices to any relevant Data Subjects covering the Processing of such Personal Data by Keywords pursuant to this Agreement.
13.5. Keywords shall only Process Personal Data for the purpose of performing the Services on reasonable written instructions that You may give to Keywords from time to time concerning such Processing. You shall ensure that any such instructions comply with all Applicable Laws. Keywords shall notify You if, in Keywords’ opinion, any instruction given by or on behalf of You breaches Data Protection Laws and may refuse to comply with any such instruction.
13.6. Notwithstanding any provision to the contrary within this clause 13, Keywords may take any steps that Keywords (acting reasonably and in good faith) determines are necessary in order for it to comply with Data Protection Laws. This shall include, without limitation, Keywords having the right to notify any relevant Supervisory Authority of any circumstance that has arisen in relation to the Processing of Personal Data under this Agreement to the extent that Keywords (acting reasonably and in good faith) believes that this is necessary in order to comply with Data Protection Laws.
13.7. Keywords shall maintain appropriate technical and organisational security measures in accordance with Article 32 of the GDPR.
13.8. Keywords shall ensure that the measures to be taken pursuant to clause 13.7 are appropriate having regard to:
13.8.1. the nature of the Personal Data and the scope, context and purposes of the Processing and the likelihood and severity of the risks to Data Subjects that are presented by the Processing of such Personal Data, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise Processed; and
13.8.2. the state of technological development and the cost of implementing such measures.
13.9. Keywords shall maintain a record of its Processing activities which relate to this Agreement as required by Article 30(2) of the GDPR and at any time upon request, and in any event upon termination or expiry of this Agreement, (unless You agree otherwise in writing in each case) deliver up all Personal Data Processed pursuant to this Agreement.
13.10. Following such delivery up and in the event of termination or expiry of this Agreement Keywords shall promptly and securely delete or destroy all such Personal Data except for any Personal Data which is necessary to enable Keywords to comply with any continuing obligations that Keywords may have following termination or expiry of this Agreement or which Data Protection Laws require to be stored.
13.11. Each Party shall provide the other with such information as such other Party reasonably requests from time to time to enable such other Party to satisfy itself that the party providing the information is complying with its obligations under this clause 13.
13.12. Each Party may, at its own expense, inspect the other Party’s compliance with this clause 13. Due to the confidential and proprietary nature of Keywords’ operations and to protect the integrity and security of its operations and the nature of systems which may be used to provide the Services under this Agreement, Keywords reserves the right to reasonably limit the scope of such audits or inspections and requires written notice of no less than 30 Business Days (such audits or inspections to occur no more than once in any twelve (12) month period.
13.13. Keywords may cause or allow Personal Data to be transferred to and/or otherwise Processed in a Non-adequate Country and/or to third countries or international organisations, provided that such transfer or Processing complies with Data Protection Laws.
13.14. You acknowledge and agree that Keywords shall be entitled to use sub-processors to Process Personal Data on Keywords’ behalf. If Keywords wishes to appoint additional or replacement sub-processors during the term of this Agreement, it shall inform You of such proposed appointment in advance and give You the opportunity to object to the appointment (save that if the additional or replacement sub-processor is a member of Keywords’ Group Keywords shall be entitled to use such sub-processor without notice to You). Keywords shall take into account any objections communicated to Keywords by You when deciding whether to make the appointment, but Keywords shall not be bound by such objections.
13.15. Keywords shall procure that any sub-processors who have access to Personal Data in connection with this Agreement shall be subject to binding contractual obligations which are substantially similar to the terms of this clause 13 and Keywords shall be liable for all acts and omissions of such sub-processors in relation to the Processing of such Personal Data.
13.16. Keywords shall, to the extent reasonably practicable, provide You at Your expense with such assistance as You reasonably request in order to comply with Your obligations and fulfil Data Subjects’ rights under Data Protection Laws within any reasonable timescales agreed with You.
Keywords shall notify You without undue delay if Keywords becomes aware of a Personal Data Breach.
13.18. You shall reimburse Keywords for all reasonable costs that Keywords incurs in complying with clauses 13.9 and 13.19.
13.19. Keywords shall, at Your expense, provide reasonable assistance, as requested by You from time to time, in undertaking any data protection impact assessments and/or consultation with a Supervisory Authority that You may reasonably undertake pursuant to Article 35 and/or 36 (as applicable) of the GDPR.
13.20. Keywords shall ensure that its personnel, to the extent that they are involved in the Processing of Personal Data in connection with this Agreement, shall be subject to appropriate binding obligations to protect the confidentiality of such Personal Data.
13.21. Keywords’ obligations under this clause 13 exclude any Personal Data relating to its personnel engaged in the performance of Keywords’ obligations under this Agreement generated by Keywords solely for the purposes of its internal human resources procedures and records.
13.22. You shall indemnify Keywords against all reasonable liabilities, costs, expenses, damages and losses suffered or incurred by Keywords as a result of complying with Your instructions in relation to Personal Data.
13.23. Keywords’ Group Data Protection Manager can be reached for queries and any other assistance at DataProtectionManager@keywordsstudios.com.
14. FORCE MAJEURE
14.1. Neither Party shall be liable for any delay in performing its obligations under this Agreement to the extent that such is directly caused by an Event of Force Majeure provided that:
14.1.1. any delay by a sub-contractor or supplier of the Party who is delayed will not relieve that Party from liability for delay except where the delay is beyond the reasonable control of the sub-contractor or supplier concerned; and
14.1.2. strikes or industrial action on behalf of the delayed Party’s staff or its appointed sub-contractors will not relieve that Party from liability for delay.
14.2. Subject to the delayed Party
14.2.1. immediately telling the other Party in writing of the reasons for the delay and the likely duration of the delay; and
14.2.2. using reasonable endeavours to perform its obligations under this Agreement, the performance of the delayed Party’s obligations will be suspended during the period that those circumstances persist and that Party will be granted an extension of time for performance equal to the period of the delay.
14.3. Save where the delay is caused by the act or failure to act of the other Party (in which event the rights, remedies and liabilities of the Parties will be those conferred by the other terms of this Agreement and by law):
14.3.1. any costs arising from that delay will be borne by the Party incurring the same; and
14.3.2. either Party may, if that delay continues for more than five (5) weeks, terminate this Agreement immediately on giving written notice to the other.
15. ASSIGNMENT AND SUBCONTRACTING
This Agreement may not be assigned by either Party without the other Party’s prior written consent, save that Keywords may at any time sub-contract the provision of the Services, including without limitation to any company within the Keywords’ Group. Keywords shall be liable to You for the acts and omissions of all sub-contractors appointed by Keywords in relation to the Services.
16.1. Any notice under this Agreement shall be sent in writing and may be sent by letter or by email by one Party’s Representative to the other Party’s Representative, at the address or email address set out in the Quote.
16.2. Any notice shall be effective when given as follows:
16.2.1. If the notice is by letter, it shall be effective when delivered. Delivery shall be deemed to have taken place when the letter is left by hand at the address required by clause 16.1 or within three (3) Business Days after being put in the first-class post (by airmail if to another country) with postage prepaid and addressed as per clause
16.1 (and whether sent by recorded or registered delivery or otherwise).
16.2.2. If the notice is by email it shall be effective on the date of transmission, if transmitted before 3pm local time at the place of destination on any Business Day, and in any other case on the Business Day following the date of transmission.
17. THIRD PARTY RIGHTS
Unless expressly stated in this Agreement, a person who is not a Party has no right to enforce any provision of this Agreement.
If any one or more of the provisions contained in this Agreement shall be invalid, illegal or unenforceable in any respect the validity, legality or enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
19. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement shall be deemed to constitute a partnership between the Parties nor, save as expressly set out herein, constitute either Party the agent of the other Party for the purpose.
20. ENTIRE AGREEMENT
20.1. This Agreement constitutes the entire agreement and supersedes any previous written or oral agreements between the Parties relating to the subject matter of this Agreement.
20.2. Each Party acknowledges that it has not relied upon or been induced to enter into this Agreement by a representation, statement, warranty or understanding (whether negligently or innocently made) other than as expressly set out in this Agreement.
20.3. A Party is not liable to the other Party for a representation that is not set out in this Agreement.
20.4. This clause 20 does not affect a Party’s liability in respect of a fraudulent misrepresentation or its own wilful default.
No alteration or variation of the terms of this Agreement shall be binding or effective unless agreed to in writing and signed by a Representative of both Parties.
22. INVALIDITY OR UNENFORCEABILITY
22.1. If a provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, this will not affect:
22.1.1. the legality, validity, or enforceability in that jurisdiction of any other provision of this Agreement; or
22.1.2. the legality, validity or enforceability in any other jurisdiction of that or any other provision of this Agreement.
23. APPLICABLE LAW AND DISPUTE RESOLUTION
23.1. This Agreement shall be governed by and construed in accordance with the law of English and Wales and each of the Parties irrevocably submits for all purposes in connection with this Agreement to the exclusive jurisdiction of the English Courts.
23.2. Any question or difference which may arise concerning the construction, meaning or effect of this Agreement or any matter arising out of or in connection with this Agreement (“Dispute”) shall in the first instance be referred to the Representatives for discussion and resolution. This clause shall not affect a Party’s right to claim injunctive relief in relation to an alleged breach of clauses 6 or 8 or any unauthorised or infringing use of that Party’s Intellectual Property Rights.
23.3. In the event of a Dispute between You and Keywords, the following procedure shall apply:
23.3.1. the relevant Representative shall notify the other in writing of the Dispute;
23.3.2. the Representatives will, in good faith, use all their reasonable endeavours to resolve the Dispute within twenty (20) Business Days of receipt of the written notification;
23.3.3. where a Dispute is not resolved pursuant to the provisions of this clause 23.3, it shall be dealt with in accordance with clause 23.1.