Terms of Business
BACKGROUND:
(A) Kangaroo has specialist skill and expertise in providing a range of sales marketing solutions, including brand and creative design, website design and build, digital marketing, social media management, support and maintenance, print management and video and animation services.
(B) The Customer wishes to retain a company to undertake such work and provide other related services.
(C) The Customer has agreed to retain Kangaroo and Kangaroo has agreed to provide the Services to the Customer on the terms and conditions of this Agreement.
AGREED TERMS
1. INTERPRETATION
1.1 The following definitions and rules of interpretation apply in this agreement:
1 Affiliate: any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.
2 Applicable Laws: all applicable laws, statutes, regulation from time to time in force.
3 Available Services: the services as set out in Schedule 1.
4 Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
5 Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
6 Change Order: has the meaning given in clause 7.1.
7 Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
8 Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.
9 Customer's Equipment: any equipment, including systems, cabling or facilities, provided by the Customer, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Works including any such items specified in a Statement of Work/Design Brief.
10 Customer Materials: all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to Kangaroo in connection with the Works, including the items provided pursuant to clause 6.1(d).
11 Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
12 Deliverables: any output of the Works to be provided by Kangaroo to the Customer as specified in a Statement of Work/Design Brief and any other documents, products and materials provided by Kangaroo to the Customer in relation to the Works (excluding Kangaroo's Equipment).
13 Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to clai 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.
14 Kangaroo's Equipment: any equipment, including tools, systems, cabling or facilities, provided by Kangaroo to the Customer and used directly or indirectly in the supply of the Works, including any such items specified in a Statement of Work/Design Brief but excluding any such items which are the subject of a separate agreement between the parties under which title passes to the Customer.
15 Milestone: a date by which a part or all of the Works is to be completed, as set out in a Statement of Work/Design Brief.
16 Reference Charges: the standard charges for the Available Services or the framework for calculating them as set out in Schedule 3.
17 SoW Charges: the sums payable for the Works as set out in a Statement of Work/Design Brief.
18 Statement of Work/Design Brief: a detailed plan, agreed in accordance with clause 3, describing the services to be provided by Kangaroo, the timetable for their performance and the related matters listed in the template statement of work/design brief set out in Schedule 2.
19 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.
20 VAT: value added tax chargeable in the UK or elsewhere.
21 Works: the Available Services which are provided by Kangaroo under a Statement of Work/Design Brief, including services which are incidental or ancillary to the Works.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other gender.
1.8 This agreement shall be binding on, and ensure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns.
1.9 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.10 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.11 A reference to writing or written includes fax and email.
1.12 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.13 A reference to this agreement or to any other agreement or document referred to in this agreement is a reference of this agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time.
1.14 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.15 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. COMMENCEMENT AND DURATION
2.1 This agreement shall commence on the date when it has been signed by all the parties and shall continue, unless terminated earlier in accordance with clause 14 (Termination), until either party gives to the other party written notice to terminate. Such notice shall be served no earlier than the first anniversary of the commencement of this agreement and shall expire on the completion of all Statements of Work entered into before the date on which it is served.
2.2 If there are no uncompleted Statements of Work as at the date notice to terminate is served under clause 2.1, such notice shall terminate this agreement with immediate effect.
2.3 The parties shall not enter into any further Statements of Work after the date on which notice to terminate is served under clause 2.1.
2.4 The Customer may procure any of the Available Services by agreeing a Statement of Work/Design Brief with Kangaroo pursuant to clause 3 (Statements of Work).
2.5 Kangaroo shall provide the Works from the date specified in the relevant Statement of Work/Design Brief.
3. STATEMENTS OF WORK
3.1 Each Statement of Work/Design Brief shall be agreed in the following manner:
(a) the Customer shall ask Kangaroo to provide any or all of the Available Services and provide Kangaroo with as much information as Kangaroo reasonably requests in order to prepare a draft Statement of Work/Design Brief for the Available Services requested;
(b) following receipt of the information requested from the Customer Kangaroo shall, as soon as reasonably practicable either:
(i) inform the Customer that it declines to provide the requested Available Services; or
(ii) provide the Customer with a draft Statement of Work/Design Brief.
(c) if Kangaroo provides the Customer with a draft Statement of Work/Design Brief pursuant to clause 3.1(b)(ii), Kangaroo and the Customer shall discuss and agree that draft Statement of Work/Design Brief; and
(d) both parties shall sign the draft Statement of Work/Design Brief when it is agreed;
3.2 Unless otherwise agreed, the SoW Charges shall be calculated in accordance with the Reference Charges.
3.3 Kangaroo may charge for the preparation of Statements of Work on a time and materials basis in accordance with Kangaroo's daily fee rates as set out in Schedule 3.
3.4 Once a Statement of Work/Design Brief has been agreed and signed in accordance with clause 3.1(d), no amendment shall be made to it except in accordance with clause 7 (Change control).
3.5 Each Statement of Work/Design Brief shall be part of this agreement and shall not form a separate contract to it.
4. KANGAROO'S RESPONSIBILITIES
4.1 Kangaroo shall use reasonable endeavours to provide the Works, and deliver the Deliverables to the Customer, in accordance with a Statement of Work/Design Brief in all material respects.
4.2 Kangaroo shall use reasonable endeavours to meet any performance dates or the Milestones (as the case may be) specified in a Statement of Work/Design Brief but any such dates shall be estimates only and time for performance by Kangaroo shall not be of the essence of this agreement.
4.3 Kangaroo shall appoint a manager in respect of the Works to be performed under each Statement of Work/Design Brief, such person as identified in the Statement of Work/Design Brief. That person shall have authority to contractually bind Kangaroo on all matters relating to the relevant Works (including by signing Change Orders).
5. CUSTOMER'S OBLIGATIONS
5.1 The Customer shall:
(a) co-operate with Kangaroo in all matters relating to the Works;
(b) appoint a manager in respect of the Works to be performed under each Statement of Work/Design Brief, such person as identified in the Statement of Work/Design Brief. That person shall have authority to contractually bind the Customer on all matters relating to the relevant Works (including by signing Change Orders);
(c) provide, for Kangaroo, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer's premises, office accommodation, data and other facilities as reasonably required by Kangaroo including any such access as is specified in a Statement of Work/Design Brief;
(b) provide to Kangaroo in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or a third party) required under a Statement of Work/Design Brief or otherwise reasonably required by Kangaroo in connection with the Works and ensure that they are accurate and complete;
(e) inform Kangaroo of all health and safety and security requirements that apply at any of the Customer's premises;
(f) ensure that all the Customer's Equipment is in good working order and suitable for the purposes for which it is used in relation to the Works and conforms to all relevant United Kingdom standards or requirements;
(g) obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable Kangaroo to provide the Works, including in relation to the installation of Kangaroo's Equipment, the use of all Customer Materials and the use of the Customer's Equipment, in all cases before the date on which the Works are to start; and
(h) comply with any additional responsibilities of the Customer as set out in the relevant Statement of Work/Design Brief.
5.2 If Kangaroo's performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy it may have, Kangaroo shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
6. NON-SOLICITATION
6.1 The Customer shall not, without the prior written consent of Kangaroo, at any time from the date on which any Works commence to the expiry of 12 months after the completion of such Works, solicit or entice away from Kangaroo or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Kangaroo in the provision of such Works.
6.2 Any consent given by Kangaroo in accordance with clause 6.1 shall be subject to the Customer paying to Kangaroo a sum equivalent to 20% of the then current annual remuneration of Kangaroo's employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.
7. CHANGE CONTROL
7.1 Either party may propose changes to the scope or execution of the Works but no proposed changes shall come into effect until a relevant Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
(a) the Works;
(b) the SoW Charges;
(c) the timetable for the Works; and
(d) any of the other terms of the relevant Statement of Work/Design Brief.
7.2 If Kangaroo wishes to make a change to the Works it shall provide a draft Change Order to the Customer.
7.3 If the Customer wishes to make a change to the Works:
(a) it shall notify Kangaroo and provide as much detail as Kangaroo reasonably requires of the proposed changes, including the timing of the proposed change; and
(b) Kangaroo shall, as soon as reasonably practicable after receiving the information at clause 8.3(a), provide a draft Change Order to the Customer.
7.4 If the parties:
(a) agree to a Change Order, they shall sign it and that Change Order shall amend the relevant Statement of Work/Design Brief; or
(b) are unable to agree a Change Order, the Works shall not change and the Customer or Kangaroo may decide to terminate the Statement of Work/Design Brief and Kangaroo shall be entitled to charge all work in progress up to the point of termination.
7.5 Kangaroo may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Customer pursuant to clause 7.3 on a time and materials basis at Kangaroo's daily rates specified in Schedule 3.
8. CHARGES AND PAYMENT
8.1 In consideration of the provision of the Works by Kangaroo, the Customer shall pay the SoW Charges.
8.2 Where the SoW Charges are calculated on a time and materials basis:
(a) Kangaroo's daily fee rates for each individual person as set out in Schedule 3 are calculated on the basis of an eight- hour day, worked during Business Hours; and
(b) Kangaroo shall ensure that every individual whom it engages on the Works completes time sheets to record time spent on the Works, and Kangaroo shall indicate the time spent per individual in its invoices.
8.3 Where the SoW Charges are calculated on a fixed price basis, the amount of those charges shall be as set out in a Statement of Work/Design Brief.
8.4 The SoW Charges exclude the following, which shall be payable by the Customer monthly in arrears, following submission of an appropriate invoice:
(a) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom Kangaroo engages in connection with the Works; and
(b) the cost to Kangaroo of any materials or services procured by Kangaroo from third parties for the provision of the Works as such items and their cost are set out in the Statement of Work/Design Brief or approved by the Customer in advance from time to time.
8.5 Kangaroo may increase the Reference Charges and any SoW Charges not calculated in accordance with the Reference Charges on an annual basis with effect from each anniversary of the date of this agreement in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the date of this agreement and shall be the latest available figure for the percentage increase in the Retail Prices Index.
8.6 Any increase in the Reference Charges shall affect:
(a) the SoW Charges (to the extent that they are calculated in accordance with the Reference Charges) in Statements of Work in force at the date the increase takes effect; and
(b) the calculation of the SoW Charges for Statements of Work entered into after the date the increase takes effect.
8.7 Kangaroo shall invoice the Customer for the SoW Charges at the intervals specified, or on the achievement of the Milestones indicated, in the Statement of Work/Design Brief. If no intervals are so specified, Kangaroo shall invoice the Customer at the end of each month for Works performed during that month.
8.8 The Customer shall pay each invoice submitted to it by Kangaroo within 30 days of receipt to a bank account nominated in writing by Kangaroo from time to time (unless otherwise agreed). The Customer may in some circumstances be requested to pay upfront before orders are placed/Deliverables are performed/provided.
8.9 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Kangaroo any sum due under this agreement on the due date:
(a) the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will 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) Kangaroo shall be entitled to all reasonable administration costs and all legal costs and expenses such as court fees, in seeking recovery of any unpaid invoices which shall be added to such debt owed to Kangaroo; and
(c) Kangaroo may suspend part or all of the Works until payment has been made in full.
8.10 All sums payable to Kangaroo under this agreement:
(a) are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
(b) 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).
9. INTELLECTUAL PROPERTY RIGHTS
9.1 In relation to the Deliverables:
(a) Kangaroo and its licensors shall retain ownership of all IPRs in the Deliverables, excluding the Customer Materials;
(b) Kangaroo grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non- exclusive, royalty-free licence during the term of this agreement to copy and modify the Deliverables (excluding the Customer Materials) for the purpose of receiving and using the Works and the Deliverables in its business; and
(c) the Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 10.1(b):
(i) to its Affiliates and customers; and
(ii) to third parties for the purpose of the Customer's receipt of services similar to the Works.
9.2 In relation to the Customer Materials, the Customer:
(a) and its licensors shall retain ownership of all IPRs in the Customer Materials; and
(b) grants to Kangaroo a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this agreement for the purpose of providing the Works to the Customer.
9.3 Kangaroo:
(a) warrants that the receipt, use of the Works and the Deliverables by the Customer shall not infringe the rights, including any Intellectual Property Rights, of any third party;
(b) shall, subject to clause 13.2, indemnify the customer against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all other reasonable professional costs and expenses) suffered or incurred or paid by the Customer arising out of or in connection with any claim brought against the Customer for actual or alleged infringement of a third parties 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 of the Works and Deliverables.
(c) shall not be in breach of the warranty at clause 10.3(a), and the Customer shall have no claim under the indemnity at clause 10.3(b) to the extent the infringement arises from:
(i) the use of Customer Materials in the development of, or the inclusion of the Customer Materials in, the Works or any Deliverable;
(ii) any modification of the Works or any Deliverable, other than by or on behalf of Kangaroo; and
(iii) compliance with the Customer's specifications or instructions, where infringement could not have been avoided while complying with such specifications or instructions and provided that Kangaroo shall notify the Customer if it knows or suspects that compliance with such specification or instruction may result in infringement].
9.4 The Customer:
(a) warrants that the receipt and use in the performance of this agreement by Kangaroo, its agents, subcontractors or consultants of the Customer Materials shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
(b) shall indemnify Kangaroo against all liabilities, costs, expenses, damages and losses (including but not limited to 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 professional costs and expenses) suffered or incurred or paid by Kangaroo arising out of or in connection with any claim brought against Kangaroo, its agents, subcontractors or consultants for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this agreement of the Customer Materials.
9.5 If either party (Indemnifying Party) is required to indemnify the other party (Indemnified Party) under this clause 9, the Indemnified Party shall:
(a) notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at clause 10.3(b) or clause 10.4(b) (as applicable) (IPRs Claim);
(b) allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs 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.
10. COMPLIANCE WITH LAWS AND POLICIES
10.1 In performing its obligations under this agreement, Kangaroo shall comply with the Applicable Laws.
11. DATA PROTECTION
11.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
11.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the customer is the controller and Kangaroo is the processor.
11.3 Without prejudice to the generality of clause 11.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Kangaroo for the duration and purposes of this agreement.
11.4 Without prejudice to the generality of clause 11.1, Kangaroo shall, in relation to any personal data processed in connection with the performance by Kangaroo of its obligations under this agreement:
(a) process that personal data only on the documented written instructions of the Customer unless Kangaroo is required by Applicable Laws to otherwise process that personal data. Where Kangaroo is relying on the laws of a member of the European Union or European Union Law as the basis for processing personal data, Kangaroo shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Kangaroo from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
(d) not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or Kangaroo has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) Kangaroo complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) Kangaroo complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
(e) assist the Customer, at the Customer's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a personal data breach;
(g) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 11 and allow for audits by the Customer or the Customer's designated auditor and immediately inform the Customer if, in the opinion of Kangaroo, an instruction infringes the Data Protection Legislation.
11.5 The Customer consents to Kangaroo appointing sub-contractors as a third party processor of personal data under this agreement. Kangaroo confirms that it has entered or (as the case may be) will enter with the third party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 11 and in either case which Kangaroo confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and Kangaroo, Kangaroo shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause 11.
11.6 Either party may, at any time on not less than 30 days' notice, revise this clause 11 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
12. CONFIDENTIALITY
12.1 Each party undertakes that it shall not at any time during this agreement, and for a period of three years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or Kangaroos of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 13.2(a).
12.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 12; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 No party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
13. LIMITATION OF LIABILITY
13.1 Nothing in this agreement limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
13.2 Subject to clause 13.1, Kangaroo's total liability to the Customer shall not exceed 100% of the charges in relation to the Work or Works resulting in the breach. Kangaroo's total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this agreement.
13.3 This clause 13.3 sets out specific heads of excluded loss:
(a) subject to clause 13.1, the types of loss listed in clause 14.7(b) are wholly excluded by the parties.
(b) The following types of loss are wholly excluded
(i) Loss of profits.
(ii) Loss of sales or business.
(iii) Loss of agreements or contracts.
(iv) Loss of anticipated savings.
(v) Loss of use or corruption of software, data or information.
(vi) Loss of or damage to goodwill.
(vii) Indirect or consequential loss.
13.4 Kangaroo has given commitments as to compliance of the Services with relevant specifications in clause 4.1. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
13.5 Unless the Customer notifies Kangaroo that it intends to make a claim in respect of an event within the notice period, Kangaroo shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
14. TERMINATION
14.1 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this agreement and such breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company);
(e) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company);
(f) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(g) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(h) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
(i) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.1(b) to clause 15.1(h) (inclusive); or
(ii) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
14.2 Without affecting any other right or remedy available to it, Kangaroo may terminate this agreement with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 5 days after being notified in writing to make such payment; or
(b) there is a change of control of the Customer.
15. CONSEQUENCES OF TERMINATION
15.1 On termination or expiry of this agreement:
(a) all existing Statements at Work shall terminate automatically;
(b) the Customer shall immediately pay to Kangaroo all of Kangaroo's outstanding unpaid invoices and interest and, in respect of the Works supplied but for which no invoice has been submitted, Kangaroo may submit an invoice, which shall be payable immediately on receipt;
(c) where the Customer has entered into a long term or fixed term arrangement, shall be required to pay up to the end of the term all amounts due up to the end of such term as though the Statement of Work had run its course;
(d) the Customer shall, return all of Kangaroo's Equipment. If the Customer fails to do so, then Kangaroo may enter the Customer's premises and take possession of Kangaroo's Equipment. Until Kangaroo's Equipment has been returned or repossessed, the Customer shall be solely responsible for its safe keeping;
(e) Kangaroo shall on request return any of the Customer Materials not used up in the provision of the Works; and
(f) the following clauses shall continue in force: clause 1 (Interpretation), clause 6 (Non-solicitation), clause 9 (Intellectual property rights), clause 12 (Confidentiality), clause 13 (Limitation of liability), clause 15 (Consequences of termination), clause 19 (Governing law) and clause 20 (Jurisdiction).
15.2 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
16. FORCE MAJEURE
16.1 Force Majeure Event means any circumstance not within a party's reasonable control.
16.2 If a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
16.3 If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than 4 weeks, the party not affected by the Force Majeure Event may terminate this agreement by giving 4 weeks' written notice to the Affected Party.
17. MISCELLANEOUS
17.1 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
17.2 Subject to clause 7 (Change control), no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
17.3 A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
17.4 A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
17.5 The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
17.6 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
17.7 If any provision or part-provision of this agreement is deemed deleted under clause 17.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
17.8 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
17.9 If there is an inconsistency between any of the provisions of this agreement and the provisions of the Schedules, the provisions of this agreement shall prevail.
17.10 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
17.11 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.
18. COUNTERPARTS
18.1 This agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
18.2 Transmission of the executed signature page of a counterpart of this agreement by (a) fax or (b) email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of this agreement. If either method of delivery is adopted, without prejudice to the validity of the agreement thus made, each party shall provide the others with the original of such counterpart as soon as reasonably possible thereafter.
19. GOVERNING LAW
19.1 This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
20. JURISDICTION
20.1 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
This agreement has been entered into on the date stated at the beginning of it.
Kangaroo UK is the trading name of Kangaroo Marketing & Design Ltd. Company Registration No. 08918158, Registered in England and Wales. VAT No. 181435022. Registered Office: 7 Charter Point Way, Ashby-de-la-Zouch, Leics LE65 1NF. United Kingdom.