Schedule
Part 2: Service Terms and Conditions
SECTION 1: DEFINITIONS
1. The following definitions apply to these Conditions:
Agreement
this Creative Services Agreement or the contract between the Client and Contagious for the supply of Services in accordance with these Conditions (as applicable).
Applicable Laws
all applicable laws, statues, regulations and codes from time to time in force.
Change Order
has the meaning set out in Condition 7.1. of the Terms.
Charges
the sums payable for the Services, as set out in the applicable Proposal or as otherwise agreed between the parties in writing.
Client
the client specified in the Creative Services Confirmation or the Proposal (as applicable).
Client Project Manager
the person appointed pursuant to Condition 6.1. of the Terms.
Client Equipment
means any equipment, systems, cabling or facilities provided by Client and used directly or indirectly in the provision of the Services.
Client Materials
any documents, data, know-how, methodologies, software and other materials provided to Contagious by the Client, including computer programs, reports and specifications.
Conditions
these Service Terms and Conditions.
Confidential Information
information that is proprietary or confidential and which is either labelled as such or else which should reasonably to be considered as confidential because of its nature and the manner of its disclosure.
Contagious
Contagious (UK) Limited (company number SC223455).
Contagious Account Manager
the person appointed pursuant to Condition 6.2. of the Terms.
Contagious Materials
any pre-existing systems, general methods of presentation and standard software programs proprietary to Contagious, which may be used directly or indirectly in the supply of the Services together with any preliminary, draft or prototype work, concepts or designs that are not taken forward by the Client in respect of the Project.
Contract Start Date
the contract start date specified in the Creative Services Confirmation (if applicable).
Creative Deliverables
any Deliverables created or designed specifically for the purposes of the Project that are presented to the Client in final form (excluding the Third Party Product).
Creative Services Confirmation
the creative services confirmation signed by or on behalf of both parties (if applicable).
Data Protection Legislation
(i)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; and (ii) 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); and (iii) the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Deliverables
all documents, work product and other materials provided by Contagious to the Client in the course of performing the Services, including those identified in the Proposal (including the Third Party IP and the Creative Deliverables, but excluding the Client Materials and the Contagious Materials).
Delivery Milestone
a date by which a part of the Services is to be completed, as set out in the applicable Proposal.
Intellectual Property Rights
patents, 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 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.
Order
the Client’s order for Services as set out in the Client’s purchase order form or the Client’s acceptance of a Proposal by Contagious.
Project
the project set out in the applicable Proposal.
Proposal
the applicable proposal or statement of work document setting out the details of the Services to be provided.
Services
the services as set out in the applicable Proposal, including services which are incidental or ancillary to such services.
Services Start Date
the services start date identified in the applicable Proposal.
Third Party IP
any third party Intellectual Property Rights to be incorporated or provided as part of the Deliverables.
Third Party Product
any third party product purchased by Contagious on behalf of the client which has not been specifically created or designed for the purposes of the Project.
SECTION 2: TERMS WHICH APPLY
The following conditions within this section apply only where the Client has requested a one-off supply and has not entered into a Creative Services Agreement:
2. Application of Conditions
2.1. - The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2. - The Order shall only be deemed to be accepted when Contagious commences provision of the Services or issues written acceptance of the Order (whichever is the earlier) at which point and on which date the Agreement shall come into existence.
2.3. - These Conditions apply to the Agreement to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4. - Any samples, drawings, descriptive matter or advertising issued by Contagious 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 Agreement or have any contractual force.
2.5. - Any Proposal or other quotation given by Contagious shall not constitute an offer, and is only valid for a period of 30 business days from its date of issue.
The following conditions within this section apply only where the Client has entered into a Creative Services Agreement with Contagious:
3. Commencement and Duration
The Agreement shall commence on the Contract Start Date and shall continue, unless terminated earlier in accordance with Condition 15.
3.1. - 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 Contract Start Date and shall expire on the completion of all Proposals entered into before the date on which it is served.
3.2. - If there are no uncompleted Proposals as at the date notice to terminate is served under Condition 3.1, such notice shall terminate the Agreement with immediate effect.
3.3. - The parties shall not enter into any further Proposals after the date on which notice to terminate is served under Condition 3.1.
3.4. On termination of the Agreement under Condition 15, all existing Proposals shall terminate automatically.
4. Sign off procedure for Proposals
4.1. - Each Proposal shall be agreed in the following manner:
4.1.1. - the Client shall ask Contagious to provide services and shall provide Contagious with as much information as Contagious reasonably requests in order to prepare a draft Proposal for the services requested;
4.1.2. - following receipt of the information requested, Contagious shall provide the Client with a draft Proposal;
4.1.3. - the parties shall discuss and agree that draft Proposal; and
4.1.4. - both parties shall sign off in writing (which includes email) on the draft Proposal when it is agreed.
4.2. - Each Proposal shall be part of the Agreement and not form a separate agreement to it.
5. Order of Precedence
5.1. - In the event of a conflict between the terms of the Agreement, the order of precedence shall be as follows:
5.1.1. - Proposal(s);
5.1.2. - Service Terms and Conditions;
5.1.3. - Creative Services Confirmation.
SECTION 3: GOVERNANCE
6. Contract Management
6.1. - The Client shall appoint a project manager (Client Project Manager) who shall:
6.1.1. - act as the primary contact for Contagious;
6.1.2. - oversee the receipt of the Services from Contagious;
6.1.3. - have responsibility for the day-to-day operational aspects of the Services received from Contagious; and
6.1.4. - have authority to sign any Change Orders and otherwise act on behalf of the Client in relation to matters pertaining to the Agreement.
6.2. - Contagious shall appoint an account manager (Contagious Account Manager) who shall:
6.2.1. - act as the primary contact for the Client;
6.2.2. - oversee the delivery of the Services to the Client;
6.2.3. - have responsibility for the day-to-day operational aspects of the Services to the Client; and
6.2.4. - have authority to sign any Change Orders and otherwise act on behalf of Contagious in relation to matters pertaining to the Agreement.
6.3. - The Client may change the identity of the Client Project Manager, and Contagious may change the identity of the Contagious Account Manager, at any time by giving prior written notice to the other party. Such change shall take effect on the date specified in the notice.
6.4 - The Client Project Manager and the Contagious Account Manager shall hold regular review meetings to monitor and review the performance of the Agreement, and to discuss any changes which may be desirable. The frequency of such meetings shall, unless otherwise stated in the Proposal, be agreed between the parties from time to time.
7. Changes Procedure
7.1. - Either party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until a relevant Change Order has been signed off by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
7.1.1. - the Services;
7.1.2. - the Charges;
7.1.3. - the timetable for the Services; and
7.1.4. - any of the other terms of the Agreement.
7.2. - If Contagious, acting reasonably, wishes to make a change to the Services it shall provide a draft Change Order to the Client. The Client shall not unreasonably withhold or delay consent to any such draft Change Order.
7.3. - If the Client wishes to make a change to the Services, it shall notify Contagious and provide as much detail as Contagious reasonably requires of the proposed changes, including the timing of the proposed change. Contagious shall, as soon as reasonably practicable after receiving the required information, provide a draft Change Order to the Client.
7.4. - If the parties agree to a Change Order, they shall sign it off in writing (which includes email) and that Change Order shall amend the relevant Proposal.
8. Contagious Responsibilities
8.1. - Contagious shall provide the Services to the Client in accordance with the Agreement from the Services Start Date.
8.2. - Contagious shall:
8.2.1. - cooperate with the Client in all matters relating to the Services;
8.2.2. - use reasonable endeavours to manage and complete the Services, and deliver the Deliverables to the Client, in accordance with the Agreement in all material respects;
8.2.3. - obtain all licenses and consents which are specially stated in the Proposal to be the responsibility of Contagious to obtain;
8.2.4. - comply with all Applicable Laws as required to enable Contagious to provide the Services; and
8.2.5. - maintain complete and accurate records relating to the provision of the Services under the Agreement, including records of the time spent and materials used by Contagious in providing the Services.
8.3. - The parties agree that title to the Third Party Product shall pass to the Client when Contagious receives payment in full. Risk in the Third Party Product shall pass to the Client on completion of delivery.
9. Delivery Milestones
9.1. - Any estimate given by Contagious in relation to performance of any stage of the Services is given in good faith having regard to the information made available by the Client and Contagious shall use reasonable endeavours to meet any Delivery Milestones or other performance dates given. However, Delivery Milestones or other performance dates provided by Contagious in relation to the Services are, in the absence of specific written agreement to the contrary, estimated only and no such Delivery Milestone or estimated performance date (or any confirmation or variation of them in subsequent correspondence or reports) shall be deemed in any circumstance to be undertakings, warranties or contractual conditions.
9.2. If Contagious’ performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Client or its agents, subcontractors, consultants or employees, Contagious shall not be deemed in breach of its obligations under the Agreement or otherwise liable for any costs, charges or losses sustained or incurred by the Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
10. Client Responsibilities
10.1. - The Client shall:
10.1.1. - cooperate with Contagious in all matters relating to the Services;
10.1.2. - provide, for Contagious, its agents, subcontractors, consultants and employees, such access to the Client's premises or other facilities as may reasonably be requested by Contagious for the purposes of performing the Services;
10.1.3. - respond promptly to any request by Contagious to provide direction, information, approvals, authorisations or decisions that are reasonably necessary for Contagious to perform Services in accordance with the requirements of the Agreement;
10.1.4. - provide such information, documents and materials as Contagious may reasonably request in order to carry out the Services, in a timely manner, and ensure that they are accurate and complete in all material respects;
10.1.5. - ensure that all Client Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all applicable legal or industry standards or requirements;
10.1.6. - unless otherwise stated in the Proposal, obtain and maintain all necessary licenses and consents and comply with all Applicable Laws as required to enable Contagious to provide the Services, in all cases before the date on which the Services are to start; and
10.1.7. - appoint third party contractors to build and construct any projects envisaged by the Proposal.
11. Charges and Payment
11.1. - In consideration of the provision of the Services by Contagious, the Client shall pay the Charges.
11.2. - Contagious shall invoice the Client for the Charges at the intervals specified, or on the achievement of the Delivery Milestones indicated, in the Proposal. If no intervals are so specified Contagious shall invoice the Client at the end of each month for Services performed during that month.
SECTION 4: SERVICE TERMS
11.3. - The Client shall pay each invoice submitted to it by Contagious in Sterling within 30 days of receipt to the bank account nominated in writing by Contagious from time to time.
11.4. - Where the calculation of Charges is based on a currency other than Sterling, the relevant figure(s) shall be converted to Sterling at the rate of exchange between Sterling and that other currency published by HMRC for that month (or at such other earlier rate as Contagious may reasonably propose to avoid unexpected and adverse currency fluctuations).
11.5. - Without prejudice to any other right or remedy that it may have, if the Client fails to pay Contagious any sum due under the Agreement on the due date:
11.5.1. - 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 will accrue each day at 2.5% a year above the Bank of Scotland’s base rate from time to time;
11.5.2. - Contagious may suspend all or part of the Services and performance of any other contract between the parties until payment has been made in full.
11.6. - All sums payable to Contagious under the Agreement are exclusive of VAT, and the Client shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice.
12. Intellectual Property
12.1. - In relation to the Client Materials:
12.1.1. - the Client and its licensors shall retain ownership of all Intellectual Property Rights in the Client Materials; and
12.1.2. - the Client grants to Contagious a fully paid-up, non-exclusive, royalty-free licence to copy and modify the Client Materials for the term of the Agreement for the sole purpose of providing the Services to the Client.
12.2. - If the Deliverables are to include any Third Party IP, the detail of the usage rights relating to that Third Party IP is to be agreed in writing on a case-by-case basis between the parties.
12.2.1. - Contagious and its licensors shall retain ownership of all Intellectual Property Rights in the Contagious Materials and, unless otherwise agreed in the Proposal, the Creative Deliverables; and
12.2.2. - in consideration for full payment by the Client to Contagious of all Charges due under the Agreement, and unless otherwise agreed in the Proposal, Contagious grants to the Client a non-exclusive, royalty-free, perpetual licence to use the Contagious Materials and the Creative Deliverables necessary for receipt and use of the Services and the Deliverables in its business for the purposes of the Project.
12.3. - If the Proposal provides for any Creative Deliverables to be owned by the Client, then the Intellectual Property Rights in such Creative Deliverables shall:
12.3.1. - be assigned to the Client on payment of all sums due under the Agreement without further formality; and
12.3.2. - automatically be deemed licensed to Contagious to use for the purposes of providing the Services.
13. Confidentiality
13.1. - Each party undertakes that it shall not at any time without the prior written consent of the other party disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by this Condition 13.
13.2. - Each party may disclose the other party’s Confidential Information:
13.2.1. - to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Agreement. Each party shall ensure that any such person to whom it discloses the other party’s confidential information complies with this Condition 13; and
13.2.2. - as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3. - No party shall use any other party’s Confidential Information for any purpose other than to perform its obligations under the Agreement.
14. Publicity
14.1. - Notwithstanding any other provision of the Agreement, Contagious shall be entitled to reference the Client’s name and Project in any marketing materials used for Contagious services and its business generally. Where the Client has provided Contagious with logos or trade marks, Contagious shall be authorised to use these in relation to any such reference.
SECTION 5: GENERAL TERMS
15. Termination
15.1. - Without affecting any other right or remedy available to it, either party to the Agreement may terminate it with immediate effect by giving written notice to the other party if:
15.1.1. - the other party commits a material breach of any term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
15.1.2. - 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), 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;
15.1.3. - 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
15.1.4. - 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 Agreement has been placed in jeopardy.
15.2. - Without affecting any other right or remedy available to it, Contagious may terminate the Agreement with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.
16. Exit Obligations and Survival
16.1. - On termination or expiry of the Agreement, the Client shall immediately pay to Contagious all outstanding unpaid invoices and interest and, in respect of any Services supplied but for which no invoice has been submitted, Contagious may submit an invoice, which shall be payable immediately on receipt.
16.2. - Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect.
16.3. - Termination or expiry of the 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.
17. Limitation of Liability
17.1. - Nothing in the Agreement shall limit or exclude either party’s liability for:
17.1.1. - death or personal injury caused by its negligence;
17.1.2. - fraud or fraudulent misrepresentation; or
17.1.3. - any other liability which cannot be limited or excluded by applicable law.
17.2. - The commitments given by Contagious as to compliance of the Services are set out in Condition 8. In view of these commitments, the terms implied by the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Agreement.
17.3. - The Client acknowledges that Contagious is not the manufacturer of any Third Party Product that may be provided as part of the Services. Where Third Party Product is provided Third Party Product will, to the extent possible, provide the benefit of any manufacturer’s guarantee and/or warranty to the Client in relation to the relevant Standard Deliverable. All other warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
17.4. - Subject to Condition 17.1:
17.4.1. - neither party to the Agreement shall have any liability to the other party, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, for any indirect and consequential loss arising out of or in connection with the Agreement;
17.4.5. - Contagious’s total liability to the Client whether arising in contract, delict (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Agreement shall be limited to 100% of the total Charges paid by the Client under the Agreement in the 12 month period preceding the date on which the claim arose.
18. Data Protection
18.1. - Both parties will comply with all applicable requirements of the Data Protection Legislation. This Condition 1 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
18.2. - The parties acknowledge that, in relation to any personal data processed by Contagious on behalf of the Client, for the purposes of the Data Protection Legislation, the Client is the controller and Contagious is the processor. The applicable Proposal shall set out the subject-matter and duration of processing by Contagious, the nature and purpose of the processing and the types of personal data and categories of data subjects.
18.3. - Contagious shall, in relation to any personal data processed in connection with the performance by Contagious of its obligations under the Agreement:
18.3.1. - process that personal data only on the documented instructions of the Client (unless otherwise required by Applicable Law);
18.3.2. - maintain records or any process of personal data carried out on behalf of the Client;
18.3.3. - ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
18.3.4. - if it contracts a sub-contractor which will be processing personal data, ensure that each sub-contractor has the same obligations as Contagious with respect to personal data processed on the Client’s behalf;
18.3.5. - ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
18.3.6. - not transfer any personal data outside of the European Economic Area (EEA) (and, should the UK cease at any time to be within the EEA, it shall for the purposes of this Condition 18.3.6 be treated as if it was nevertheless part of the EEA), unless it has provided appropriate safeguards in relation to the transfer;
18.3.7. - 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;
18.3.8. - notify the Client without undue delay on becoming aware of a personal data breach;
18.3.9. - 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 Applicable Law to store the personal data).
18.4. - The Client warrants that:
18.4.1. - it is not aware of any circumstances likely to give rise to breach of the Data Protection Legislation (including any personal data breach);
18.4.2. - it has a lawful basis under the Data Protection Legislation to transfer the personal data to Contagious for processing under the Agreement and such use will comply with all Data Protection Legislation;
18.4.3. - it will promptly notify Contagious of any action Contagious must take to assist it with ensuring compliance with its obligations under Data Protection Legislation, including with request to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; and
18.4.4. - the personal data is necessary, adequate, relevant, accurate and up-to-date and it will notify Contagious promptly of any changes to the personal data.
18.5. - The Client shall indemnify Contagious against any loss or damage suffered by Contagious in relation to any breach by the Client of its obligations under this Condition 18.
19. Notices
19.1. - Any notice given to a party under or in connection with the Agreement shall be:
19.1.1. in writing;
9.1.2. - sent for the attention of the contact and at the address or email address listed in the Creative Services Confirmation or Proposal (as applicable) (or such other contact/address as that party may notify in accordance with this Condition 19); and
19.1.3. - sent by email or delivered by hand or by pre-paid first-class post or other next working day delivery service.
19.2. - Any notice shall be deemed to have been received:
19.2.1. - if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
19.2.2. - if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second business day after posting or at the time recorded by the delivery service; and
19.2.3. - if sent by email, at the time of transmission.
19.3. - This Condition 19 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
20. Entire Agreement
20.1. - The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representation and understandings between them, whether written or oral, relating to its subject matter.
20.2. - Each party agrees that it 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 Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statements in the Agreement.
21. Severance
21.1. - If any provision or part-provision of the 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 the Agreement.
21.2. - If any provision or part-provision of the Agreement is deemed deleted under Condition 21.1, 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.
22. Dispute Resolution Procedure
22.1. - Any dispute arises in connection with the Agreement, the Client Project Manager and the Contagious Account Manager shall, within 7 days of a written request from one party to the other, meet in a good faith effort to resolve the dispute. If they fail to resolve the issue it shall be escalated to the chief operating officer (or equivalent position) within each party (or his/her nominee) to meet in good faith within 14 days of the previous meeting to try and resolve the dispute.
22.2. - If the procedure set out in Condition 22.1 does not resolve the dispute, 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 shall be nominated by CEDR. To initiate the mediation, a party must give notice in writing (ADR Notice) to the other party requesting mediation. A copy of the request shall be sent to CEDR. The mediation shall start not later than 45 days after the date of the ADR Notice. Any mediation shall be held in Edinburgh, United Kingdom, unless otherwise agreed between the parties.
22.3. - No party may commence any court proceedings or arbitration in relation to any dispute arising out of the 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.
23. Miscellaneous
23.1. - Set off. All amounts due under the Agreement 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).
23.2 - Force majeure. Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
23.3 - Subcontractors. Contagious may employ any person, company or firm as its agent or subcontractor to perform all or any of its obligations or duties under the Agreement, or to secure the production or provision of any Services required in connection with the performance of the Agreement. The Client acknowledges that Contagious may, in carrying out Services for the Client, be acting as an agent for either one or both of the Client and/or any third party subcontractor. The Client shall not be entitled to assign its rights or transfer its obligations under the Agreement without the prior written consent of Contagious.
23.4. - Variation. Subject to Condition 7, no variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
23.5. - Waiver. No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
23.6 - Third party rights. The Agreement does not give rise to any rights under the Contracts (Third Party Rights)(Scotland) Act 2017 to enforce any term of the Agreement.
23.7. - Governing Law. The 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 Scotland.
23.8 - Jurisdiction. Each party irrevocably agrees that the courts of Scotland shall have the non-exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.