Terms and Conditions – Strategy Projects
1. Definitions and Interpretation
1.1 These Terms and Conditions together with the Term Sheet form the agreement between the parties (the “Agreement”). Words and phrases have the meaning given to them in the Term Sheet and this Clause 1:
Client Materials: all information and materials, whether owned by Client or a third party, reasonably required by Longitude to fulfil the Services.
Deliverables: means the deliverables as set out in the Term Sheet.
IPRs: all intellectual property rights wherever in the world arising, whether registered or not, including copyright, database rights and trade marks.
1.2 The words “include” and “including” shall be construed without limitation, and any reference to any statute includes any subsequent re-enactment or amending provision. This Agreement negates and takes precedence over any Client terms and conditions.
2.1 Longitude shall perform the Services and deliver the Deliverables in accordance with the Project Timeline, with reasonable skill and care and in accordance with laws applicable to Longitude.
2.2 Client shall perform any obligations set out on the Term Sheet and promptly provide such co-operation as Longitude may reasonably request (including relevant, complete and accurate Client Materials, comments and feedback).
2.3 Any briefing and/or presentation meetings are assumed to be approximately one hour in duration. If longer meetings are required, Longitude may charge the Client accordingly.
2.4 If Longitude’s performance of its obligations is prevented or delayed by any act or omission of Client, its staff, agents or subcontractors, (“Client Default”) then Longitude shall notify Client of such Client Default, and shall not be liable to Client for any losses or costs suffered by Client as a result of such prevention or delay. Without prejudice to any other right or remedy it may have, Longitude may at its sole discretion: (a) suspend performance of this Agreement until Client remedies the Client Default; and (b) require a reasonable extension of time to perform its obligations at least equal to the delay caused by the Client Default.
3. Intellectual Property Rights
3.1 Upon payment of the Fees, Longitude assigns to Client (by way of present and where appropriate future assignment) all right, title and interest in and to the IPRs in the Deliverables.
3.2 Longitude shall retain all IPRs in Longitude’s trade marks and any other works created by or on behalf of Longitude during preparation of the Deliverables and otherwise performing its obligations under this Agreement. Client shall not without Longitude’s prior written consent include Longitude’s trade marks or state or imply that Longitude promotes or endorses any particular policies, products or services of the Client or any third party.
3.3 Client shall retain all IPRs in any Client Materials. Client hereby grants to Longitude a worldwide, non-exclusive, royalty free licence to use such IPRs for the sole purpose of carrying out its obligations under this Agreement.
4.1 Client shall pay the Fees in accordance with the Payment Schedule or, if the Payment Schedule is silent, within 30 days of the date specified in the invoice Longitude sends to Client.
4.2 All Fees are exclusive of VAT. Client shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice. Client shall pay all Fees in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5. Warranties and Indemnities
5.1 Each party warrants and represents to the other that it has the full power and authority to enter into this Agreement.
5.2 Longitude warrants that the Deliverables shall not infringe the IPRs of any third party, and are in accordance with laws applicable to Longitude, except to the extent that any breach is as a result of any Client Materials.
5.3 Client warrants that the Client Materials shall not infringe the rights of any third party.
5.4 Longitude agrees to indemnify Client against any damages (including reasonable legal costs) which may be awarded by a court of competent jurisdiction against Client or may be agreed to be paid to any third party, in each case in respect of any claim that Client’s use of the Deliverables (excluding any Client Materials) in accordance with the terms of this Agreement infringes the IPRs of such third party (such claim, a “TPC”), provided that: (a) the Client gives written notice to Longitude of such TPC immediately on becoming aware of it and does not at any time admit liability or otherwise attempt to settle or compromise such TPC without Longitude’s prior written consent; (b) Longitude shall have sole conduct of the defence or compromise of any TPC and as between Longitude and Client, Longitude shall have the sole right to any costs and damages awarded as a result; and (c) Client acts in accordance with the reasonable instructions of Longitude and provides Longitude with such assistance as it shall reasonably require, at Longitude’s reasonable cost, in respect of the conduct of such defence or compromise.
5.5 Except as expressly set out in this Agreement and to the extent permissible by law, all warranties, conditions, representations, terms or undertakings, express or implied, statutory or otherwise are hereby excluded.
6. Limitation of Liability
6.1 Longitude shall not have any liability to Client to the extent such liability arises from any Client Materials, a Client Default, or any breach of this Agreement by Client.
6.2 Neither party shall be liable to the other for any indirect, special, incidental or consequential loss or damage of any kind whatsoever.
6.3 The aggregate liability of either party under this Agreement shall in no event exceed 150% of the total amount of fees paid or payable under the Term Sheet.
6.4 Nothing in this Agreement shall operate to exclude or restrict either party’s liability for: (a) death or personal injury caused by its negligence; (b) fraud or fraudulent misrepresentation; (c) any claim under an indemnity contained in this Agreement; or (d) any liability which cannot be limited or excluded by law.
7. Confidentiality and Personal Data
7.1 Each party agrees to keep confidential (both before, during and after the Term) the terms of this Agreement and all information, whether written or oral, concerning the business or affairs of the other (including information relating to the other party’s customers or suppliers, financial information, projections, technology, product ideas, marketing plans or business plans) that it has received or obtained from the other or may receive or obtain from the other and shall not use the same without the prior written consent of the disclosing party for any purpose except to exercise its rights and perform its obligations under or in connection with this Agreement. Such obligation shall not apply in the case of any disclosure required by law, or to information which is in the public domain (other than as a result of a breach of any confidentiality obligation), or to information which is independently developed by a party without reference to the other party’s confidential information, or to information which is provided to a party by a third party entitled to so provide it.
7.2 Longitude shall not be required to include any personal data in the Deliverables (including personal data of survey respondents and interviewees). To the extent that either party shares any personal data with the other party (including details of potential or actual respondents to any survey, questionnaire or interview), each party warrants that it shall comply with applicable data protection laws.
8. Term and termination
8.1 This Agreement shall commence on the final date of signature of the Term Sheet and shall continue in force until delivery of the final Deliverable, unless terminated earlier in accordance with this Agreement.
8.2 Either party may terminate this Agreement on immediate written notice if: (a) the other party is in material breach of this Agreement and in the case of a breach capable of remedy having been notified of any such breach in writing has failed to remedy the same within fourteen (14) days; or (b) the other party shall cease to carry on its business or shall have a liquidator, receiver or administrative receiver appointed to it or over any part of its undertaking or assets or shall pass a resolution for its winding up or a court of competent jurisdiction shall make an administration order or liquidation order or similar order, or shall enter into any voluntary arrangement with its creditors, or shall be unable to pay its debts as they fall due or any event analogous to the other occurs in any jurisdiction.
8.3 On termination or expiry of this Agreement, Client shall immediately pay to Longitude all outstanding unpaid invoices which are not subject to a bona fide dispute. In respect of Services supplied but for which no invoice has been submitted, Longitude may submit an invoice, which shall be payable within thirty days of receipt.
8.4 Termination or expiry shall not affect (a) any provision in this Agreement which is expressly or by implication intended to come into effect on, or to continue in effect after, such expiry or termination; or (b) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry.
9. Force majeure
9.1 With the exception of Client’s obligation to pay the Fees, neither party shall be liable for any failure to perform its obligations under this Agreement if such performance is hindered or prevented by any matter beyond the reasonable control of the party whose performance is hindered or prevented (including without limitation by reason of any pandemic or any catastrophic failure, interruption, or degradation of any third party telecommunications network or system or hardware or the Internet or any part of it) (a “Force Majeure Event”). If a Force Majeure Event continues for more than one (1) month then either party may immediately terminate this Agreement on written notice to the other (provided that the Force Majeure Event is still continuing on the date of that notice).
10.1 No provision of this Agreement, including the nature of the Services or the Deliverables to be produced, may be amended, modified, discharged or terminated other than by the express written agreement of the parties. Client acknowledges that any requests to amend the scope of Services or Deliverables may result in an increase in Fees and/or extension of any timescales.
10.2 No failure or delay by either party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise by either party of any right, power or privilege preclude any further exercise thereof or the exercise of any other right, power or privilege.
10.3 This Agreement may be signed in counterparts. Any signature of this Agreement by digital or electronic means is legally binding.
10.4 Any notice must be in writing, and be addressed to the other party’s Relationship Manager. Notices must be delivered by hand or by recorded delivery or courier. Any notice shall be deemed to have been served if delivered by hand, at the time and date of delivery; and if sent by recorded delivery or courier, upon the date of receipt (as evidenced by signature).
10.5 Nothing in this Agreement will be deemed to create a partnership or agency or joint venture between the parties.
10.6 This Agreement constitutes the entire agreement between the parties as to the subject matter hereof and supersedes all previous communications, representations and arrangements, either written or oral, and each party hereby acknowledges that no reliance is placed on any representation made by the other party before the date of this Agreement but not embodied in this Agreement.
10.7 If any provisions of this Agreement shall be held illegal or unenforceable by a court of competent jurisdiction then such provisions shall be severed and the remainder of this Agreement shall remain in full force and effect unless the business purpose of this Agreement is substantially frustrated thereby in which case this Agreement shall automatically terminate.
10.8 Neither party may assign or transfer the benefit of this Agreement without the prior written consent of the other party.
10.9 No term of this Agreement shall be enforceable by a person who is not a party to this Agreement.
10.10 This Agreement and any non-contractual obligations arising under it shall be governed by and construed in accordance with the laws of England and Wales and the parties submit to the exclusive jurisdiction of the English courts.