HIGHJAM Terms of Business

INTERPRETATION
The following definitions and rules of interpretation apply in these Conditions.
1. Definitions:
  1. Additional Services: any additional Services that Highjam agrees to provide following acceptance of the Order.
  2. Advertising Regulations: any present or future applicable code of practice or adjudication of the Committee of Advertising Practice, Broadcast Committee of Advertising Practice or the Advertising Standards Authority and includes any applicable modification, extension or replacement thereof in force from time to time, together with other UK laws, statutes and regulations which are directly applicable to the Services.
  3. Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
  4. Charges: the charges payable by the Client for the supply of the Services as set out in the Order or otherwise agreed in writing.
  5. Client: the person or firm who purchases Services from Highjam.
  6. Client Default: has the meaning set out in clause 4.2.
  7. Client Materials: any documents, copy, data, information, client equipment, computer systems, software, artwork, logos, Intellectual Property Rights, and any other materials or information owned by or licensed to the Client that are provided to Highjam by or on behalf of the Client.
  8. Commencement Date: has the meaning given in clause 2.2.
  9. Conditions: these terms and conditions as amended from time to time in accordance with clause 14.5.
  10. Contract: the contract between Highjam and the Client for the supply of Services in accordance with these Conditions.
  11. Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
  12. Deliverables: the deliverables set out in the Order produced by Highjam for the Client.
  13. Highjam: Highjam Marketing Limited incorporated and registered in England and Wales with company number 09053170 whose registered office address is at Highjam, Studio 580, salisbury House, London Wall, London EC2M 5QQ.
  14. Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks 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 trade secrets), 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 claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
  15. Order: the Client’s written acceptance of a project quotation issued by Highjam (which includes the issue of a purchase order by the Client).
  16. Project: the Services to be provided to the Client, as set out or referred to in the Order.
  17. Services: the services, including the Deliverables, to be supplied by Highjam to the Client as set out in the Specification, and any Additional Services.
  18. Specification: the description or specification of the Services set out in the Order or as separately provided in writing by Highjam to the Client.
  19. Third Party Costs: any sums payable to a Third Party Supplier.
  20. Third Party Services:any goods or services provided by a Third Party Supplier.
  21. Third Party Supplier:any third party engaged by Highjam in, or in relation to, a Project, including (but not limited to) venue operators, site operators, providers of stands or specialist services, and suppliers of other goods and/or services.
  22. Highjam Materials: has the meaning set out in clause 4.1(h).
2. Interpretation:
  1. A reference to legislation or a legislative provision:
    1. is a reference to it as amended, extended or re-enacted from time to time; and
    2. shall include all subordinate legislation made from time to time under that legislation or legislative provision.
  2. 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.
  3. A reference to writing or written includes email.
BASIS OF CONTRACT
1. The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2. The Order shall only be deemed to be accepted when Highjam issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
3. Any samples, drawings, descriptive matter or advertising issued by Highjam, and any descriptions or illustrations contained in Highjam’s proposals or other documents, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
4. These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
5. Any quotation given by Highjam shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
SUPPLY OF SERVICES
1. Highjam shall supply the Services to the Client in accordance with the Specification in all material respects.
2. Highjam shall use all reasonable endeavours to meet any performance dates specified in the Order or Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3. Highjam reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Highjam shall notify the Client in any such event.
4. Subject to clause 3.5, Highjam warrants to the Client that the Services will be provided using reasonable care and skill.
5. The Client acknowledges and agrees that Highjam is unable to (and does not) give any warranty or guarantee that the Services or Deliverables will result in any particular results, whether in relation to increased sales, market share, footfall, publicity or otherwise, and that Highjam shall have no liability to the Client whatsoever if the Services or Deliverables do not meet the Client’s targets or expectations in that regard or if the Client’s goods or services are not sold or distributed in the expected volumes or remain unsold or undistributed.
6. Without prejudice to the generality of clause 14.1, the Client acknowledges and agrees that Highjam shall have no liability to the Client in the event that it is unable to provide personnel for the Project due to illness or any other cause beyond Highjam’s reasonable control (Personnel Incapacity), including if such Personnel Capacity results in the cancellation of any Third Party Services.
7. The relationship between the parties is non-exclusive and Highjam shall therefore be entitled to provide any services or deliverables that are the same as, or similar to, the Services and/or Deliverables to any third party.
CLIENT’S OBLIGATIONS
1. The Client shall:
  1. ensure that the terms of the Order and the Specification are complete and accurate;
  2. co-operate with Highjam in all matters relating to the Services;
  3. provide Highjam, its employees, agents, consultants and subcontractors, with access to the Client’s premises, third party premises (unless arranged by Highjam) and other facilities as reasonably required by Highjam;
  4. provide Highjam with such information and materials as Highjam may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
  5. (without prejudice to the generality of sub-clause (e) above) promptly supply to Highjam (at no charge) any Client Materials reasonably required by Highjam or otherwise necessary to provide the Services and Deliverables and shall ensure that it has all rights and licences in place to enable use by Highjam of all Client Materials;
  6. where Services are to be provided at the Client’s premises or (unless they are arranged by Highjam) any third party premises, prepare those premises for the supply of the Services;
  7. obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
  8. keep all materials, equipment, documents and other property of Highjam (Highjam Materials) at the Client’s premises in safe custody at its own risk, maintain Highjam Materials in good condition until returned to Highjam, and not dispose of or use Highjam Materials other than in accordance with Highjam’s written instructions or authorisation;
  9. comply with any additional obligations as set out in the Specification; and
  10. comply with all applicable laws and regulations (including all Advertising Regulations) with respect to its activities under the Contract.
  11. to pay on time and in accordance with this contract
2. If Highjam’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
  1. without limiting or affecting any other right or remedy available to it, Highjam shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays Highjam’s performance of any of its obligations;
  2. Highjam shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Highjam’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
  3. the Client shall reimburse Highjam on written demand for any costs or losses sustained or incurred by Highjam arising directly or indirectly from the Client Default.
INSURANCE; EQUIPMENT
Insurance
1. During the term of the Contract, Highjam shall maintain in force, with a reputable insurance company, employer’s liability insurance (in respect of its own personnel) and public liability insurance.
2. Highjam reserves the right to charge the Client a proportion of the costs of such insurance which, where applicable, will be included in Highjam’s quotation, estimate or proposal.
3. The Client acknowledges that the insurances referred to above do not provide any cover in respect of the Client’s own employees, personnel or the personnel of any third party engaged by the Client.
4. Highjam will not effect any specific insurance in relation to the Project (for example, product liability insurance, or event, promotion, money handling, adverse weather or motor insurance, etc). If the Client requires any specific insurance, Highjam may be willing to effect additional insurances, subject to availability and the Client reimbursing Highjam in respect of the associated cost.
  
  Equipment
5. Highjam shall ensure that all equipment purchased or hired on the Client’s behalf is subject to, and that relevant documents are prepared in respect of, risk assessments, health and safety documentation, portable appliance tests (known as “PAT tests”) and/or method statements, as appropriate (Equipment Documentation). For the avoidance of doubt, the Highjam will not prepare Equipment Documentation in respect of any Client Materials or equipment provided by, or on behalf of, the Client. Where required, Equipment Documentation in respect of such Client Materials or equipment must be provided by the Client not less than one week before commencement of the Project (or earlier, if required by a venue, site or event operator).
CHANGE CONTROL
1. Either party may propose changes to the scope or execution of the Services, but no proposed changes shall come into effect until a Change Order has been signed by both parties. A Change Order shall be a document or email setting out the proposed changes and the effect that those changes will have on:
  1. the Services;
  2. Highjam’s existing charges;
  3. the timetable of the Services; and
  4. any of the terms of the Contract.
2. If Highjam wishes to propose a change to the Services it shall provide a draft Change Order to the Client.
3. If the Client wishes to make a change to the Services:
  1. it shall notify Highjam and provide as much detail as Highjam reasonably requires of the proposed changes, including the timing of the proposed changes; and
  2. Highjam shall, as soon as reasonably practicable after receiving the information at clause 6.3(a), provide a draft Change Order to the Client.
4. If the parties:
  1. agree to a Change Order, they shall sign it or agree via email and that Change Order shall amend the Contract (project); or
  2. are unable to agree a Change Order, the Contract (Project) shall remain unchanged and shall continue in full force and effect.
CHARGES AND PAYMENT
1. The Client shall pay the Charges and Third Party Costs.
2. All estimations, quotations, costings and budgets provide at the beginning of a project and from time-to-time are for guidance purposes only and given in good faith. Highjam reserves the right to reasonably revise and amend quoted third party costs accordingly should the parameters change, or market conditions change during the development or project, before the final third party order is placed. Any revisions to costs will be advised as soon as practicably possible and given in writing
3. Where the Charges and Third-Party Costs are together less than £5,000 (excluding VAT), Highjam shall invoice the Client for the full amount of the Charges and Third-Party Costs on acceptance of the Order, and shall invoice the Client for the full amount of the applicable Charges and/or Third Party costs in relation to any Additional Services on the date that Highjam accepts the Client’s request to provide them.
4. Where the Charges and Third-Party Costs are together £5,000 or more (excluding VAT), Highjam shall provide the client with a tailored invoice schedule per project which is based on the following base terms;
  1. 100% of the Third-Party Costs on acceptance of the Order;
  2. 50% of the Charges on acceptance of the Order;
  3. 50% of the Charges on the earlier of:
    1. the date on which the first live, in-person element of the Services is provided; and
    2. the date falling sixty days after acceptance of the Order;
  4. 100% of the applicable Charges and/or Third Party costs in relation to Additional Services on the date that Highjam accepts the Client’s request to provide them.
5. The Client shall pay each invoice submitted by Highjam:
  1. Invoices for Charges and/or Third Party Costs:
    1. within 30 days of the date of the invoice (where the Client has previously engaged Highjam); or
    2. on receipt (where the Client has not previously engaged Highjam);
  2. in full and in cleared funds to a bank account nominated in writing by Highjam, and time for payment shall be of the essence of the Contract.
6. All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Highjam to the Client, the Client shall, on receipt of a valid VAT invoice from Highjam, pay to Highjam such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
7. If the Client fails to make a payment due to Highjam under the Contract by the due date, then, without limiting Highjam’s remedies under clause 12:
  1. the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.7will accrue each day at 5% a year above the Bank of England’s base rate from time to time, but at 5% a year for any period when that base rate is below 0%; and
  2. Highjam shall have the right to suspend performance of the Services in accordance with clause 12.5 until Highjam has received payment of the overdue amount together with any accrued interest.
8. Where a surcharge is levied by a supplier against Highjam due to late payment and this results from late payment by the Client, the Client shall immediately reimburse to Highjam the amount of such surcharge, together with any accrued interest charged to Highjam by the supplier in respect of the overdue amount.
9. If the Client disputes any invoice:
  1. the Client shall notify Highjam in writing within five Business Days of the date of receipt of the invoice, specifying the reasons for disputing the invoice (and any invoice not so disputed shall be deemed to be accepted by the Client at the end of such period);
  2. Highjam shall provide all evidence as may be reasonably necessary to verify the disputed invoice;
  3. the Client shall pay to Highjam all amounts not disputed by the Client on the due date as set out in clause 7.5;
  4. the parties shall negotiate in good faith to attempt to resolve the dispute promptly; and
  5. if the parties have not resolved the dispute within 30 days of the Client giving notice to Highjam, the dispute shall be resolved in accordance with clause 14.11.
10. All amounts due under the Contract 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).
11. In the event that Highjam issues a credit note to the Client, such credit note shall be valid for 12 months from the date of the credit note. Any credit note that is not used by the Client within such period shall lapse without value and the Client shall no longer be entitled to redeem it.
12. If the Client is a company or other body corporate, Highjam shall be entitled from time to time to undertake credit checks in respect of the Client and shall be entitled to vary any credit terms offered to the Client if, in Highjam’s reasonable opinion, such a variation is justified by the information received by Highjam in respect of any such credit check.
CANCELLATION
1. Subject to clause 8.2, the Client may request, in writing, Highjam to cancel the Project or part thereof, including any plans, schedules or work in progress in respect of any Project. Highjam will take all reasonable steps to comply with any such request provided that Highjam is able to do so within its contractual obligations to third party suppliers.
2. In the event of any such cancellation, the Client will pay to Highjam the following, depending on the period of notice provided by the Client:
  1. Notice of cancellation received more than 14 days before the agreed date for commencement of the Project:
    1. 50% of the Charges including agency fee
    2. 100% of all Third Party Costs and other third party charges and other expenses or costs incurred by Highjam or to which Highjam is committed; and
    3. 100% of all other expenses or costs incurred and imposed on Highjam by third parties arising from the cancellation.
  2. Notice of cancellation received 14 days or less before the agreed date for commencement of the Project:
    1. 75% of the Charges including agency fee.
    2. in respect of the period of 8-14 days from receipt of notice of cancellation, 75% of Highjam’s costs in relation to its personnel who would have been engaged in the delivery of the Project but for its cancellation;
    3. 100% of all Third Party Costs and other third party charges and other expenses or costs incurred by Highjam or to which Highjam is committed; and
    4. 100% of all other expenses or costs incurred and imposed on Highjam by third parties arising from the cancellation.
  3. Notice of cancellation received 7 days or less before the agreed date for commencement of the Project or after commencement of the Project:
    1. 100% of the Charges for completed stages of the Project;
    2. in respect of the period of 7 days from receipt of notice of cancellation, 100% of Highjam’s costs in relation to its personnel who would have been engaged in the delivery of the Project but for its cancellation;
    3. 75% of the remaining Charges, agency fees and any applicable insurance charges;
    4. 100% of all Third Party Costs and other third party charges and other expenses or costs incurred by Highjam or to which Highjam is committed;
    5. 100% of all other expenses or costs incurred and imposed on Highjam by third parties arising from the cancellation.
3. For ongoing longer-term Projects (where the Project duration is more than 3 consecutive calendar months or where the Project has no agreed end date), the Client or Highjam (as the case may be) shall give not less that will six weeks’ prior written notice of cancellation to the other party.
  1. 100% of the charges for completed stages of the project
  2. 100% of costs in respect of the period of 6 weeks from receipt of notice
  3. 100% third party committed costs
  4. 100% of expense imposed arising from the cancellation
INTELLECTUAL PROPERTY RIGHTS
1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any Client Materials) shall be owned by Highjam.
2. Subject to payment of the Charges, the Third Party Costs and all other sums due under the Contract, Highjam grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free licence to use the Deliverables (excluding materials provided by the Client) solely for the purpose of receiving and using the Services and the Deliverables in its business in relation to the Project.
3. The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 9.2.
4. If Highjam is asked to present its proposals for a Project or to take part in a competitive pitch or other similar process for the Client, then notwithstanding clauses 9.1 to 9.3 (inclusive), Highjam shall retain ownership of all Intellectual Property Rights in any materials relating thereto (Proposal), save to the extent that Highjam is subsequently engaged in respect of such Project or is successful in such pitch or similar process, and the parties agree that any such materials will be used in a Project on the basis set out in clauses 9.1 to 9.3 (inclusive).
5. Without prejudice to Highjam’s other rights and remedies, if the Client uses, or engages a third party to use on its behalf, a Proposal (or any part thereof) other than by engaging Highjam, the Client agrees to pay to Highjam such sum as Highjam would have charged had it been so engaged (as set out in Highjam’s relevant quotation, estimate or proposal, less costs not incurred by Highjam).
6. Highjam shall:
  1. be able during and after the Contract to use any Deliverables which have been broadcast, published, distributed or otherwise made available to the public, and the Client’s name and logo, for the purposes of promoting its work and its business including on Highjam’s website and in pitches to prospective clients; and
  2. retain all know-how obtained in connection with the Services and Deliverables.
7. For the avoidance of doubt, Highjam shall not be liable under or in connection with the Contract for any modifications, adaptations or amendments to any Deliverables made by the Client or by a third party on the Client’s behalf, nor in the event that any fault, error, destruction or other degradation in the quality and/or quantity of the Deliverables arises due to the acts or omissions of the Client and/or any third party.
8. The Client grants Highjam a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to Highjam (including Client Materials) for the term of the Contract for the purpose of providing the Services to the Client.
9. The Client warrants that:
  1. any materials provided by the Client to Highjam (including Client Materials) will not, when used for the purpose of providing the Services to the Client or in accordance any written instructions given by the Client, infringe the rights (including Intellectual Property Rights) on any third party;
  2. to the best of its knowledge and belief, any materials provided by the Client to Highjam (including Client Materials) will comply with all applicable laws and regulations including all Advertising Regulations; and
  3. any materials provided by the Client to Highjam (including Client Materials) are accurate and complete in all material respects.
10. The Client shall indemnify Highjam 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 by Highjam arising out of or in connection with:
  1. any breach of the warranty contained in clause 9.9;
  2. any breach of clause 14.3(d);
  3. any claim made against Highjam for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Highjam’s use of the Client Materials in connection with the provision of the Services;
  4. any claim made against Highjam by a third party arising out of or in connection with the provision of the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Client, its employees, agents or subcontractors;
  5. any claim made against Highjam by a third party for death, personal injury or damage to property arising out of or in connection with the Services, to the extent attributable to the acts or omissions of the Client, its employees, agents or subcontractors.
11. The indemnity in clause 9.10 shall apply whether or not Highjam has been negligent or at fault.
DATA PROTECTION
1. The following definitions apply in this clause 10:
  
  Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
  
  Data Protection Legislation:
  1. To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of Personal Data.
  2. To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Customer or Provider is subject, which relates to the protection of personal data.
  Domestic Law: the law of the United Kingdom or a part of the United Kingdom.
  EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
  UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
2. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
3. The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Controller and Highjam is the Processor. The scope, nature and purpose of processing by the Provider, the duration of the processing and the types of Personal Data and categories of Data Subject will be determined by the Client on the basis of the Services being provided.
4. Without prejudice to the generality of clause 10.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Highjam and/or lawful collection of the Personal Data by Highjam on behalf of the Client for the duration and purposes of the Contract.
5. Without prejudice to the generality of clause 10.2, Highjam shall, in relation to any Personal Data processed in connection with the performance by Highjam of its obligations under the Contract:
  1. process that Personal Data only for the purposes of providing the Services unless Highjam is required by Domestic Law to otherwise process that Personal Data. Where Highjam is relying on Domestic Law as the basis for processing Personal Data, Highjam shall promptly notify the Client of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits Highjam from so notifying the Client;
  2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, 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);
  3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
  4. assist the Client, at the Client’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;
  5. notify the Client without undue delay on becoming aware of a Personal Data Breach;
  6. at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by Domestic Law to store the Personal Data; and
  7. maintain complete and accurate records and information to demonstrate its compliance with this clause 10.
6. The Client hereby provides its prior, general authorisation for Highjam to:
  1. appoint processors to process the Personal Data, provided that Highjam:
    1. shall ensure that the terms on which it appoints such processors comply with the Data Protection Legislation, and are consistent with the obligations imposed on Highjam in this clause 10;
    2. shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of Highjam; and
    3. shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to Highjam’s reasonable satisfaction, that the objection is due to an actual or likely breach of the Data Protection Legislation, the Client shall indemnify Highjam for any losses, damages, costs (including legal fees) and expenses suffered by Highjam in accommodating the objection.
  2. transfer Personal Data outside of the UK as required, provided that Highjam shall ensure that all such transfers are effected in accordance with the Data Protection Legislation. For these purposes, the Client shall promptly comply with any reasonable request of Highjam, including any request to enter into standard data protection clauses adopted by the UK Information Commissioner from time to time.
LIMITATION OF LIABILITY
1. References to liability in this clause 11 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
2. Nothing in this clause 11 shall limit the Client’s payment obligations under the Contract.
3. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
  1. death or personal injury caused by negligence;
  2. fraud or fraudulent misrepresentation; and
  3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
4. Subject to clause 11.3 (liabilities which cannot legally be limited), Highjam’s total liability to the Client for all loss or damage shall not exceed the total Charges.
5. Subject clause 11.3 (liabilities which cannot legally be limited), this clause 11.5 sets out the types of loss that are wholly excluded:
  1. loss of profits.
  2. loss of sales or business.
  3. loss of agreements or contracts.
  4. loss of anticipated savings.
  5. loss of use or corruption of software, data or information.
  6. loss of or damage to goodwill; and
  7. indirect or consequential loss.
6. Highjam has given commitments as to compliance of the Services with relevant specifications in clause 3. 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 the Contract.
7. Unless the Client notifies Highjam that it intends to make a claim in respect of an event within the notice period, Highjam shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire six months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
8. This clause 11 shall survive termination of the Contract.
Termination
1. Without affecting any other right or remedy available to it, Highjam may terminate the Contract by giving the Client five Business Days’ written notice.
2. Without affecting any other right or remedy available to it, the Client may terminate the Contract pursuant to clause 8, subject to payment of the sums specified in that clause.
3. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
  1. the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of that party being notified in writing to do so;
  2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
  3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
  4. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
4. Without affecting any other right or remedy available to it, Highjam may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Contract on the due date for payment.
5. Without affecting any other right or remedy available to it, Highjam may suspend the supply of Services under the Contract or any other contract between the Client and Highjam if:
  1. the Client fails to pay any amount due under the Contract on the due date for payment;
  2. the Client becomes subject to any of the events listed in clause 12.3(c) or clause 12.3(d), or Highjam reasonably believes that the Client is about to become subject to any of them; and
  3. Highjam reasonably believes that the Client is about to become subject to any of the events listed in clause 12.3(b).
CONSEQUENCES OF TERMINATION
1. On termination or expiry of the Contract:
  1. the Client shall immediately pay to Highjam all of Highjam’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Highjam shall submit an invoice, which shall be payable by the Client immediately on receipt;
  2. the Client shall return all of Highjam Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then Highjam may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
  3. the Client agrees that Highjam shall be entitled to retain any Client Materials and other property of the Client in Highjam’s possession until all sums due to Highjam have been paid in full.
2. Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
3. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
GENERAL
1. Force majeure.
  1. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract or if such delay or failure result from events, circumstances or causes beyond its reasonable control (Force Majeure Event).
  2. Without prejudice to the generality of clause 14.1(a), Highjam shall have no liability to the Client for, or in respect of, the cost of any third party venue that cannot be utilised as a result of a Force Majeure Event.
  3. Force Majeure Events include:
    1. acts of God, flood, drought, earthquake or other natural disaster;
    2. epidemic or pandemic (including COVID-19 and any subsequent re-emergence thereof, the imposition of government-mandated lockdowns, closures or restrictions and the unavailability of personnel due to illness or self-isolation requirements);
    3. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
    4. nuclear, chemical or biological contamination or sonic boom;
    5. any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
    6. collapse of buildings, fire, explosion or accident;
    7. any labour or trade dispute, strikes, industrial action or lockouts;
    8. non-performance by suppliers or subcontractors;
    9. absence due to illness, injury or other unplanned event of relevant personnel;
    10. interruption or failure of utility service; and
    11. compliance with any law or governmental order, rule, regulation or direction.
  4. If provision of the Services or Deliverables (or any of them) is cancelled, delayed or disrupted to a Force Majeure Event:
    1. Highjam shall use its reasonable endeavours to recover any Third Party Costs relating to the cancelled, delayed or disrupted Services and/or Deliverables;
    2. the Client will be liable to Highjam and will reimburse Highjam for any Third Party Costs relating to the cancelled, delayed or disrupted Services and/or Deliverables which Highjam is not able to recover or which Highjam is committed to pay.
2. Assignment and other dealings.
  1. Highjam may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
  2. The Client 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 the Contract without the prior written consent of Highjam.
3. Confidentiality.
  1. Each party undertakes that it shall not at any time during the period of two years from the Commencement Date disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 14.3(b).
  2. Each party may disclose the other party’s confidential information:
    1. to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 14.3; and
    2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
  3. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
  4. Without prejudice to the generality of sub-clause (a) above, the Client acknowledges and agrees that any identifiable and original idea or concept presented by Highjam relation to any Project developed by Highjam is available only for such promotion or campaign and shall not be used for any other purposes whatsoever without Highjam’s express prior written approval. Even where no Project is agreed, the ideas and concepts presented to the Client shall remain strictly confidential and shall not be used in any way, including communication to any third party, without Highjam’s prior written approval.
4. Entire agreement.
  1. The Contract 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.
  2. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
  3. Nothing in this clause shall limit or exclude any liability for fraud.
5. Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
6. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract 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 the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
7. Severance. If any provision or part-provision of the Contract 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.If any provision or part-provision of the Contract deleted under this clause 14.7 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.
8. Notices.
  1. Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address customarily used by that party to communicate with the other party in relating to the Contract.
  2. Any notice shall be deemed to have been received:
    1. if delivered by hand, at the time the notice is left at the proper address;
    2. if sent by pre-paid first-class post or other] next working day delivery service, at 11.00 am on the second Business Day after posting; or
    3. if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 14.8(b)(iii),business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
  3. This clause 14.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
9. Third party rights.
  1. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
  2. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
10. Governing law. The Contract, 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.
11. Jurisdiction. 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 the Contract or its subject matter or formation.