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1 Limitation of Liability
1.1 This clause sets out the entire financial liability of Policy Review TV Limited (“PRTV”) (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Client in respect of:
1.1.1 any breach of this agreement, including any deliberate personal repudiatory breach by PRTV, or its employees, agents or subcontractors;
1.1.2 any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
1.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.
1.3 Nothing in this agreement limits or excludes the liability of PRTV for death or personal injury resulting from negligence or for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by PRTV; or for any liability incurred by the Client as a result of any breach by PRTV of the clause as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.
1.4 PRTV shall not be liable for loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss of corruption of data or information or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and PRTV's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this agreement shall be limited to any actual and demonstrable financial losses reasonably incurred by the Client.
2.1 This agreement shall terminate automatically following final production as agreed with the Client (the “Services”). Without prejudice to any other rights or remedies which the parties may have, either party may terminate this agreement without liability to the other on written notice immediately if:
2.2.1 the other party repeatedly breaches any of the terms of this agreement 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 this agreement; or
2.2.2 the other party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall or being a company is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
2.2.3 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, its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies, or the solvent reconstruction of that other party; or
2.2.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies, or the solvent reconstruction of that other party; or
2.2.5 an application is made to court, or an order is made, for the appointment of an administrator, a notice of intention to appoint an administrator is given, or an administrator is appointed over the other party; or
2.2.6 a floating charge holder over the assets of that other party has become entitled to appoint, or has appointed, an administrative receiver; or
2.2.7 a person becomes entitled to appoint a receiver over the assets of the other party, or a receiver is appointed over the assets of the other party; or
2.2.8 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 its assets and such attachment or process is not discharged within 14 days; or
2.2.9 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 2.2.4 to clause 2.2.10 (inclusive); or
2.2.10 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
3.1 A party, provided that it has otherwise complied with the provisions of this agreement, shall not be in breach of this agreement, nor liable for any failure or delay in performance of any obligations under this agreement arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (“Force Majeure Event”), including but not limited to any of the following:
3.1.1 acts of God, including but not limited to fire, flood, earthquake, windstorm or other natural disaster;
3.1.2 war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions;
3.1.3 terrorist attack, civil war, civil commotion or riots;
3.1.4 compliance with any law (including a failure to grant any licence or consent needed or any change in the law or interpretation of the law);
3.1.5 any labour dispute, including but not limited to strikes, industrial action or lockouts;
3.1.6 non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause);
3.1.7 interruption or failure of utility service, including but not limited to electric power, gas or water; and
Any party that is subject to a Force Majeure Event shall not be in breach of this agreement provided that:
3.2.1 it promptly notifies the other party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance;
3.2.2 it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under this agreement in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
4. Confidentiality and PRTV’s Property
The Client shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Client by PRTV, its employees, agents, consultants or subcontractors and any other confidential information concerning PRTV’s business or its products which the Client may obtain.
The Client may disclose such information:
to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Client’s obligations under this agreement; and
- as may be required by law, court order or any governmental or regulatory authority.
The Client shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this clause.
The Client shall not use any such information for any purpose other than to perform its obligations under this agreement.
All materials, equipment and tools, drawings, specifications and data supplied by PRTV to the Client shall, at all times, be and remain the exclusive property of PRTV, but shall be held by the Client in safe custody at its own risk and maintained and kept in good condition by the Client until returned to PRTV, and shall not be disposed of or used other than in accordance with PRTV’s written instructions or authorisation.
No variation of this agreement or of any of the documents referred to in it shall be valid unless it is in writing and signed by or on behalf of each of the parties.
Failure to exercise, or any delay in exercising, 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 preclude 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 preclude or restrict the further exercise of any such right or remedy.
A waiver (which may be given subject to conditions) of any right or remedy provided under this agreement or by law shall only be effective if it is in writing and shall apply only to the party to whom it is addressed and for the specific circumstances for which it is given. It shall not prevent the party who has given the waiver from subsequently relying on the right or remedy in other circumstances.
Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
If any provision of this agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the agreement, and the validity and enforceability of the other provisions of the agreement shall not be affected.
f a provision of this agreement (or part of any provision) is found illegal, invalid or unenforceable, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties' original commercial intention.
The Client shall not, without the prior written consent of PRTV, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under this agreement.
PRTV may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under this agreement.
Each party that has rights under this agreement is acting on its own behalf and not for the benefit of another person.
9 No Partnership or Agency
Nothing in this agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
10 Rights of Third Parties
A person who is not a party to this agreement shall not have any rights under or in connection with it.
(a) A notice given to a party under or in connection with this agreement:
i)shall be in writing in English (or accompanied by a properly prepared translation into English);
ii)shall be signed by or on behalf of the party giving it;
iii)shall be sent for the attention of the person, at the address or fax number specified in this clause (or to such other address, fax number or person as that party may notify to the other, in accordance with the provisions of this clause); and
(1)delivered personally; or
(2)sent by commercial courier; or
(3)sent by fax; or
(4)sent by pre-paid first-class post or recorded delivery; or
(5)sent by airmail requiring signature on delivery.
1.The addresses for service of a notice [or other communication] are as follows:
(2)address: South Wing, Somerset House, The Strand, London WC2R 1LA
(3)for the attention of: Edward Gamble
(7)for the attention of: [CONTACT]
(8)fax number: [FAX NUMBER].
1.If a notice has been properly sent or delivered in accordance with this clause, it will be deemed to have been received as follows:
i)if delivered personally, at the time of delivery; or
ii)if delivered by commercial courier, at the time of signature of the courier's receipt; or
iii)if sent by fax, at the time of transmission; or
iv)if sent by pre-paid first-class post or recorded delivery, at [9.00 am] on the [second] day after posting; or
v)if sent by airmail, five days from the date of posting.
1.For the purposes of this clause:
i)all times are to be read as local time in the place of deemed receipt; and
ii)if deemed receipt under this clause is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt), the notice is deemed to have been received when business next starts in the place of receipt.
1.To prove delivery, it is sufficient to prove that:
i)if sent by fax, the notice was transmitted by fax to the fax number of the party; or
ii)if sent by pre-paid first class post, the envelope containing the notice was properly addressed and posted.
1.The provisions of this clause shall not apply to the service of any process in any legal action or proceedings.
2.A notice required to be given under [or in connection with] this agreement shall not be validly served if sent by e-mail.
12 Dispute Resolution
If any dispute arises in connection with this agreement, the parties shall within ten days of a written request from one party to the other, meet in a good faith effort to resolve the dispute.
If the dispute is not resolved at that meeting, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation, a party must give notice in writing (“ADR notice”) to the other party requesting a mediation. A copy of the request should be sent to CEDR Solve. The mediation will start not later than twenty days after the date of the ADR notice.
No party may commence any court proceedings in relation to any dispute arising out of this agreement until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
13 Governing Law and Jurisdiction
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).