1. Interpretation

1.1 Definitions

In these terms and conditions the following definitions will apply:

Additional Services Agreement: a supplementary document to this Agreement that details the provision of any Additional Services applicable. Please note, the Additional Services Agreement will be version-controlled and the latest version will always supersede any previous Additional Services Agreement given to the Client;

Additional Services: the services agreed to be provided by Border Crossing Media Holdings Limited as specified in an Additional Services Agreement;

Agreement: the agreement between Border Crossing Media Holdings Limited and the Client for the supply of Initial Services as detailed in the Scope of Work within a Proposal and/or any Statement of Work and these terms and conditions;

Business Day: a day other than a Saturday, Sunday or public holiday in Scotland, England and Wales;

Client: a person who is a legally authorised representative of a company or organisation that Border Crossing Media Holdings Limited agrees to provide services to;

Confidential Information: all information disclosed by or on behalf of a party (in whatever medium including in written, oral, visual or electronic form and whether before or after the date of the Agreement) including all business, financial, commercial, technical, operational, organisational, legal, management and marketing information;

Deliverables: the outputs of the Services supplied by Border Crossing Media Holdings Limited to the Client in whatever form including, where applicable, presentations, documents, prototypes or other visualisations and documentation by Border Crossing Media Holdings Limited in accordance with this Agreement but excluding Client Content;

Error: any material failure of the Deliverables to comply with the Scope of Work detailed within the latest version of the Proposal and/or Statement of Work given to the Client;

Fees: Border Crossing Media Holdings Limited charges for the project as set out in the Proposal, Statement of Work, and/or Additional Services Agreement including expenses and any other sums due to Border Crossing Media Holdings Limited under the relevant Agreement. Fees quoted are estimates only, never fixed fees (unless expressly stated to be so), due to the nature of the work involved and so are subject to change. These estimated Fees are not binding on Border Crossing Media Holdings Limited and shall be kept under review and in the event of Scope Creep or anticipated Scope Creep shall be adjusted on notice to the Client;

Initial Services: the Retained Services and/or Project Services agreed to be provided by Border Crossing Media Holdings Limited;

Intellectual Property Rights / IPR: means any and all registered and unregistered copyright patents, design rights, database and compilation rights, marks, rights in goodwill or to sue for passing off, database rights, rights in computer software, rights in confidential information (including know-how and trade secrets), business and domain names and other intellectual property rights, howsoever arising and in whatever media, and any applications for their protection or registration and all renewals and extensions anywhere in the world;

Marks: any and all names, brands, logos, trademarks, service marks, trade names and domain names;

Project (Services): the services described in the Proposal and/or Statement of Work, including the development and provision of any Deliverables;

Proposal: a written proposal issued by Border Crossing Media Holdings Limited to the client, and valid for 30 days from the date of such proposal, which details the Services and Deliverables to be provided by Border Crossing Media Holdings Limited. Please note, Proposals will be version-controlled and the latest version will always supersede any previous Proposal given to the Client;

Retained Services: any on-going support as set out in a Proposal, Statement of Work or Additional Services Agreement;

Scope Creep: work on the Initial Services which for any reason exceeds the estimated timescales and/or any other assumptions set out in the Scope of Work detailed within a Proposal, Statement of Work, and/or Additional Services Agreement;

Services: refers to the Initial Services to be provided and/or any Additional Services, as applicable;

Statement of Work: a written document issued by Border Crossing Media Holdings Limited to the client, and valid for 30 days from the date of submission, which details the Services and Deliverables to be provided by Border Crossing Media Holdings Limited. Please note, Statements of Work will be version-controlled and the latest version will always supersede any previous Statement of Work given to the Client.

1.2 Construction

In these conditions, unless otherwise specified or the context otherwise requires:

1.2.1 The words and phrases “other”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible;

1.2.2 The headings in these terms and conditions are for ease of reference only and shall not in any way affect their construction or interpretation;

1.2.3 Words denoting the singular include the plural and vice versa; words denoting any one gender include all genders and vice versa, and reference to a person shall include an individual, partnership, body corporate and unincorporated association;

1.2.4 A reference to any party shall include its personal representatives, lawful successor in title and permitted assigns.

1.3 Conflicts

If there is an inconsistency between any of the provisions of the Proposal and any Statement of Work respectively, the provisions of the Statement of Work shall prevail in preference to the provisions of the Proposal.

2. Application of terms and conditions

2.1 The Client’s acceptance of the Proposal, Statement of Work and/or Additional Services Agreement, constitutes acceptance by the Client of these terms and conditions.

2.2 Quotations are given by Border Crossing Media Holdings Limited on the basis that no agreement shall come into existence except in accordance with condition 1. Any quotation is valid for a period of 30 from its date of submission, provided that Border Crossing Media Holdings Limited has not previously withdrawn it.

2.3 Border Crossing Media Holdings Limited shall not be bound by and reserves the right to correct, before and after the Agreement is made, any typographical, clerical or other obvious error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Border Crossing Media Holdings Limited.

2.4 Once incorporated, these conditions shall apply to and be incorporated into the Agreement and prevail over any terms or conditions contained, or referred to, in the Client’s purchase order, confirmation of order, acceptance of a quotation or specification, or any inconsistent terms or conditions implied by law, trade custom, practice or course of dealing.

2.5 These terms and conditions shall continue to apply to all services provided by Border Crossing Media Holdings Limited to the Client until terminated in accordance with the Agreement.

3. Duration

The Agreement shall come into effect on the Commencement Date and, subject to provisions for cancellation or earlier termination, shall continue unless and until terminated by Border Crossing Media Holdings Limited giving the client at least three months’ notice in writing.

4. Cancellation charges

4.1 The following cancellation charges apply once a Proposal or Statement of Work, including (but not limited to) hiring our facilities and consultancy services, has been accepted by the Client and a start date has been agreed.

4.2 All direct costs already incurred by Border Crossing Media Holdings Limited in relation to the Project will be re-charged in full to the Client. This could include, for example, participant recruitment fees, equipment hire or printing costs.

4.3 If the Project is cancelled or postponed up to and including 5 working days before the scheduled start date, the Client will be liable for 60% of the Fees.

4.4 If the Project is cancelled or postponed less than 5 working days before the scheduled start date the Client will be liable for 100% of the Fees.

5. Project services

5.1 Border Crossing Media Holdings Limited agrees to carry out the Project in accordance with the Scope of Work detailed in the latest Proposal and/or Statement of Work.

5.2 Any dates and times for performance of the Services by Border Crossing Media Holdings Limited as set out in any document or discussion between the parties are estimates only and time shall not be of the essence in respect of these. Border Crossing Media Holdings Limited shall not be liable for any loss, damage, cost or expense caused directly or indirectly by any delays in performance of the Services.

5.3 The Client agrees to cooperate with Border Crossing Media Holdings Limited in the performance of the Project and to give such support, facilities, access to premises and information as may be required by Border Crossing Media Holdings Limited to perform its obligation under the Agreement.

5.4 Border Crossing Media Holdings Limited shall have discretion as to which of its employees are assigned to the Project but shall consult with the Client concerning any significant changes.

5.5 If, as a result of any act or omission by the Client which is not directly and wholly caused by Border Crossing Media Holdings Limited (including the provision of any incorrect or inadequate information or data by the Client), Border Crossing Media Holdings Limited is prevented or delayed from performing any of its obligations under the Agreement or the cost of such performance increases, then:

5.5.1 the time for performance of Border Crossing Media Holdings Limited’s obligations shall be extended for a reasonable period; The Client acknowledges that Border Crossing Media Holdings Limited shall allocate time and resources to the Services on the basis of the chargeable time estimates set out in the Scope of Work. The Client accepts that its failure to promptly provide information, instructions or otherwise respond fully to communications from Border Crossing Media Holdings Limited will mean that the allocated resources are no longer available and will result in the Services having to be rescheduled which could cause significant delays to the Services and an adjustment to the Fees as a result. Such delays may be for a longer period than the period of delay by the Client;

5.5.2 the Client shall pay Border Crossing Media Holdings Limited at Border Crossing Media Holdings Limited’s standard time and materials rates for any additional time spent and materials used by it with respect to any delays or extra work caused by such act or omission of the Client; and

5.5.3 Border Crossing Media Holdings Limited may recover all other reasonable costs, loss or damage from the Client which it sustains as a direct result of such act or omission.

5.6 Border Crossing Media Holdings Limited may charge at its standard time and materials rates for the time it spends assessing and responding to requests from the Client for a Change to the Project Scope of Work. The Client acknowledges that requests for Changes to the Project Scope of Work during the delivery of the Initial Services may impact any estimated delivery dates and Border Crossing Media Holdings Limited is entitled to adjust any estimated delivery dates further to accommodate the Client’s requests.

5.7 Border Crossing Media Holdings Limited may charge at its standard time and materials rates for the time it spends assessing and responding to requests from the Client for Additional Services to the Initial Project Scope of Work. The Client acknowledges that requests for Additional Services during the delivery of the Initial Services may impact any estimated delivery dates and Border Crossing Media Holdings Limited is entitled to adjust any estimated delivery dates further to accommodate the Client’s requests.

6. Variation to scope of work, services and terms

6.1 The terms of this Agreement shall apply to the exclusion of any other terms and conditions of the Client.

6.2 Border Crossing Media Holdings Limited may amend these terms and conditions from time to time.

6.3 If the Client wishes to amend the Scope of Work at any time following its acceptance of the Scope of Work, it shall notify Border Crossing Media Holdings Limited of the proposed amendments. Border Crossing Media Holdings Limited will use reasonable endeavours to accommodate the Client’s revised requirements but the Client acknowledges that this may result in a change in any estimate and an adjustment to the Fees and timelines which have been given by Border Crossing Media Holdings Limited. Border Crossing Media Holdings Limited shall notify the Client of any revision to the Fees and shall not be obliged to proceed with any amendments to the Scope of Work unless the Client agrees in writing its acceptance of the revised Fees.

6.4 If Border Crossing Media Holdings Limited determines, in its sole discretion, that it cannot accommodate a Client’s proposed changes to the Scope of Work, it reserves the right to refuse the Client’s request.

6.5 Except as set out in this clause, no variation of these terms and conditions or this Agreement shall be effective unless it is made in writing and signed by both parties.

7. Charges and payments

7.1 In consideration of the provision of Border Crossing Media Holdings Limited’s services, the Client agrees to pay Border Crossing Media Holdings Limited the Fees in accordance with the provisions of the Agreement.

7.2 Prior to commencement of the Initial Services, Border Crossing Media Holdings Limited requires the Client to pay a non-refundable deposit for the Initial Services. Border Crossing Media Holdings Limited shall not commence the Initial Services until the Client has given its written acceptance of the Scope of Work, has executed this Agreement and paid any deposit that may be due.

7.3  Where no Fees are specified in a Proposal, Statement of Work or an Additional Services Agreement, the Fees shall be calculated on a time and materials basis at Border Crossing Media Holdings Limited’s current rates which may be adjusted or may vary from time to time. In either case, Border Crossing Media Holdings Limited shall use specialist software to keep timesheets of all work undertaken for the Client and such timesheets shall be conclusive and binding on both parties.

7.4 The Client acknowledges and agrees that:

7.4.1 All Fees quoted are estimates only, never fixed fees (unless expressly stated to be so), due to the nature of the work involved and so are subject to change. Estimated Fees are not binding on Border Crossing Media Holdings Limited and shall be kept under review and in the event of Scope Creep or anticipated Scope Creep shall be adjusted on notice to the Client;

7.4.2 Fees have been calculated on the basis of the assumptions set out in our Proposal, Statement of Work or Additional Services Agreement and the initial understanding of the Scope of Work and that the remit of work required may change as the Client’s understanding of its own requirements changes.

7.5 Border Crossing Media Holdings Limited reserves the right to increase the Fees in the event of:

7.5.1 Scope Creep;

7.5.2 Where the Client requests changes to the Project’s Scope of Work as detailed in the Proposal, Statement of Work or an Additional Services Agreement;

7.5.3 Where the Client requests the provision of Additional Services out with the Scope of Work detailed in the Proposal, Statement of Work or an Additional Services Agreement;

7.5.4 Any assumptions specified in a Proposal, Statement of Work or an Additional Services Agreement being or becoming incorrect or changing over time;

7.5.5 Where the Client requires further amendments to Deliverables which are not specified in the Scope of Work of any Proposal, Statement of Work or an Additional Services Agreement;

7.5.6 Where the Client approves a deliverable and subsequently changes their mind resulting in additional time spend by Border Crossing Media Holdings Limited;

7.5.7 Where the Client delays in providing any information required by Border Crossing Media Holdings Limited or fails to perform any of the Client’s obligations under this Agreement.

7.6  Any increase to the Fees under clause 7.5 shall be calculated and charged for on a time and material basis at Border Crossing Media Holdings Limited’s then current rates and invoiced on a monthly basis unless otherwise specified by Border Crossing Media Holdings Limited.

7.7 Border Crossing Media Holdings Limited’s rates may be subject to change from time to time, including increasing the hourly rates of those employees and contractors assigned to the Project. This will be agreed in advance with the Client in writing.

7.8 As part of the Fees the Client shall reimburse Border Crossing Media Holdings Limited for all agreed expenses and costs (including printing, travel, accommodation, subsistence, etc,) and expenses incurred by Border Crossing Media Holdings Limited in the performance of the Project. Expenses or third party costs shall be invoiced to the Client at the end of the month in which the expense is incurred and shall be charged for at the rate imposed by the relevant third party.

7.9 All Fees are expressed exclusive of VAT. The Client shall pay to Border Crossing Media Holdings Limited, in addition to the Fees, the amount of VAT (if any) which is properly chargeable by Border Crossing Media Holdings Limited to the Client on or in respect of the Fees.

7.10 Invoices will be issued to the Client by Border Crossing Media Holdings Limited at pre-agreed milestones or dates as described in the Proposal, Statement of Work or Additional Services Agreement. Payment is due within 14 days of the date of the invoice.

7.11 If payment of an invoice is not made in full by the due date, Border Crossing Media Holdings Limited shall, without prejudice to any other rights or remedies, have the right to:

7.11.1 cancel the Agreement or suspend the Project; and

7.11.2 charge the Client interest (both before and after any judgment) on the amount unpaid at the same annual rate as is prescribed from time to time pursuant to section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 with a minimum rate of 10% per annum.

7.12 The Client shall not be entitled to withhold payment of any sum otherwise payable to Border Crossing Media Holdings Limited by reason of any claim, set-off or for damages in relation hereto.

8. Client obligations

8.1 The Client agrees:

8.1.1 to pay the Fees for the Services and any other sums due to Border Crossing Media Holdings Limited in accordance with this Agreement;

8.1.2 to fully cooperate with Border Crossing Media Holdings Limited in the provision of the Services;

8.1.3 the Client is responsible for providing and maintaining suitable equipment, telecommunications and support services to facilitate access to the Deliverables;

8.1.4 to act in good faith towards Border Crossing Media Holdings Limited at all times;

8.1.5 to keep all passwords and confidential information provided by Border Crossing Media Holdings Limited secret at all times;

8.1.6 not to interfere or attempt to interfere with the proper working of a research or design process and/or the outputs and Deliverables produced; and

8.1.7 to only use the Deliverables subject to the terms and conditions of any licence granted to it by Border Crossing Media Holdings Limited pursuant to clause 13 and any applicable laws and regulations.

8.2 The Client acknowledges that Border Crossing Media Holdings Limited’s ability to provide the Services is dependent upon the full and timely cooperation of the Client (which the Client agrees to provide), as well as the accuracy and completeness of the Client Content and other information provided by the Client. Therefore the Client agrees to provide complete and accurate Client Content and any other information that may be required for the Deliverables.

8.3 Where the Client fails to provide the Client Content and/or other required information or materials or to reply to any request for information from Border Crossing Media Holdings Limited or delays in doing so, Border Crossing Media Holdings Limited shall not be liable for any delay or failure on its part to perform the Services as a result and reserves the right to:

8.3.1 cease providing the Services and charge for the work completed to date and any wasted expenditure incurred by Border Crossing Media Holdings Limited as a result of the unexpected delay to the work including but not limited to the cost of unused time slots pre-allocated to the Services; or

8.3.2 change the Scope of Work to account for the lack of information in which case any resulting change to the Fees shall be borne by the Client.

9. Client content

9.1 The Client shall be responsible for any Client Content it submits to Border Crossing Media Holdings Limited for inclusion in the Deliverables and shall obtain all necessary licences, permissions, waivers and authorities in respect of any Client Content before submitting such materials to Border Crossing Media Holdings Limited.

9.2 Border Crossing Media Holdings Limited reserves the right to refuse to handle in any way and/or remove any content from the Deliverables any Client Content which:

9.2.1 May be deemed offensive, illegal or in any way controversial; or

9.2.2 It reasonably suspects infringes any applicable laws, regulations or third party rights (such as material which is offensive, defamatory or in breach of any third party IPRs).

9.3 The Client acknowledges that (where the Deliverables take the form of research reports, a collaborative design process, prototypes or outputs such as websites, mobile applications or similar, developed by Border Crossing Media Holdings Limited for the Client) Border Crossing Media Holdings Limited has no control over any content placed on outputs developed by participants in the process and/or users of the Deliverables and does not purport to monitor or moderate the content of the outputs and/or Deliverables post-handover.

9.4 The Client shall indemnify and hold harmless Border Crossing Media Holdings Limited at all times from and against all claims, demands, costs (including legal costs on a full indemnity basis) expenses, losses and liabilities any costs and liabilities incurred as a result of Border Crossing Media Holdings Limited’s use of the Client Content including any third party claim arising out of or in connection with the Client Content.

10. Correction of errors

10.1 During the performance of the Services if the Client notifies Border Crossing Media Holdings Limited of any Errors, Border Crossing Media Holdings Limited shall endeavour to correct such Errors.

10.2 Where however there are no Errors but the Client notifies Border Crossing Media Holdings Limited of additional changes or modifications that it requires to be made to the Deliverables and such changes or modifications are outside the remit of the Scope of Work then clauses 6.3 and 7.5.3 shall apply.

10.3 Where Border Crossing Media Holdings Limited is unable to correct any Error notified by the Client it shall make a proportional refund to the Client of any monies already paid by the Client to Border Crossing Media Holdings Limited for the specific deliverable exhibiting the unfixable Error less the cost of all other work already done by Border Crossing Media Holdings Limited in performing the Services. Where Border Crossing Media Holdings Limited makes a refund to the Client in accordance with this clause 9.3 it shall have no further liability to the Client in respect of such Errors.

10.4 If any Errors result from a defect which is caused by an act or omission of the Client, and through no fault of Border Crossing Media Holdings Limited, then Border Crossing Media Holdings Limited shall provide assistance reasonably requested by the Client in remedying any such defect but reserves the right to charge the Client for such assistance at its then current prices and fees and which the Client shall pay. Where the Client is not prepared to pay then Border Crossing Media Holdings Limited is under no obligation to provide further assistance.

10.5 Any errors and all remedial actions and/or claims which the Client may wish to bring arising out of or relating to this Agreement or the relationship with Border Crossing Media Holdings Limited pursuant to this Agreement will be barred unless an action is commenced within one (1) year from the date on which the act or event giving rise to the claim occurred, or one (1) year from the date on which the Client knew or should have known, in the exercise of reasonable diligence, of the facts giving rise to such claims, whichever occurs later.

11. Risk and title in the deliverables

11.1 Risk of damage to or loss of any Deliverables shall pass to the Client on delivery.

11.2 Title to any Deliverables that are goods and in any physical media on which Deliverables are stored shall pass to the Client on the later of delivery or payment of the Fees for them.

12. Confidentiality

12.1 Each party shall use the Confidential Information of the other party whether disclosed before or after the date of the Agreement only for the proper performance of its duties under the Agreement and shall not without the disclosing party’s written consent disclose or permit the disclosure of the confidential information except in confidence for the proper performance of its duties under this Agreement to those of its employees, subcontractors, officers and professional advisers who need to have access to it.

12.2 Each of the parties will use at least the same degree of care (and not less than a reasonable degree of care) it uses to prevent the disclosure of its own confidential information of like importance, to prevent the disclosure of Confidential Information of the other party.

12.3 Each party will promptly notify the other party of any actual or suspected misuse or unauthorised disclosure of the other party’s Confidential Information.

12.4 The provisions of this clause 12 shall not apply to: (i) information that has come into the public domain other than by breach of this clause or breach of any other duty of confidence; (ii) information that is obtained from a third party without breach of this clause or breach of any other duty of confidence; and (iii) information that is required to be disclosed by a regulatory or government body or court of competent jurisdiction with power to compel the disclosure.

14. Data protection

14.1 Each party warrants that it has made all relevant notifications in accordance with its obligations under the Data Protection Act 2018 to the extent required for the processing of personal data (as defined under that Act) in the performance of its obligations and exercise of its rights under the Agreement.

14.2 The parties agree to comply with the relevant provisions of the Data Protection Act 2018 in its processing of such personal data.

15. Liability

15.1 Nothing in the Agreement shall limit the liability of Border Crossing Media Holdings Limited to the Client for:

15.1.1 death or personal injury resulting from its negligence (as defined in the Unfair Contract Terms Act 1977);

15.1.2 fraudulent misrepresentation; or

15.1.3 any other liability which cannot be excluded or limited by applicable law.

15.2 Subject to clause 15.1:

15.2.1 Border Crossing Media Holdings Limited shall not be liable to the Client for loss or damage to the Client’s property unless due to the negligence of the Border Crossing Media Holdings Limited staff;

15.2.2 Border Crossing Media Holdings Limited’s maximum aggregate liability under or in connection with the Agreement, whether in contract, tort (including negligence) or otherwise, will in no circumstances exceed the total remuneration payable to Border Crossing Media Holdings Limited under the Agreement during the preceding 12 months; and

15.2.3 Border Crossing Media Holdings Limited will not be liable under the Agreement for any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise.

15.3 Except as expressly set forth in the Agreement, all conditions, warranties and other terms and all representations expressed or implied by statute common law or otherwise with respect to the Project are excluded to the fullest extent permitted by law.

15.4 Any and all claims which the Client may wish to bring arising out of or relating to this Agreement or the relationship with Border Crossing Media Holdings Limited pursuant to this Agreement will be barred unless an action is commenced within one (1) year from the date on which the act or event giving rise to the claim occurred, or one (1) year from the date on which the Client knew or should have known, in the exercise of reasonable diligence, of the facts giving rise to such claims, whichever occurs later.

16. Termination

16.1 Either party shall have the right to terminate this Agreement on one month’s written notice to the other party, except where Border Crossing Media Holdings Limited provides Retained Services to the Client in which case either party may terminate this Agreement on three months’ written notice to the other party.

16.2 Border Crossing Media Holdings Limited shall have the right to terminate this Agreement immediately on written notice to the Client:

16.2.1 if the Client commits any material breach of the terms of this Agreement (including failure to pay any invoice due to Border Crossing Media Holdings Limited) which, in the case of a breach capable of remedy, is not remedied within thirty (30) days of service of a notice specifying the breach and stating the intention to terminate this Agreement if not remedied;

16.2.2 if the Client (or any individual employed by or otherwise related to or acting on behalf of the Client) behaves in a manner which Border Crossing Media Holdings Limited deems (in its absolute discretion) to be threatening, abusive or otherwise inappropriate; or

16.2.3 if Border Crossing Media Holdings Limited determines (in its absolute discretion) that its relationship with the Client has broken down to the extent that it is no longer tenable for Border Crossing Media Holdings Limited to continue providing the Services.

16.3 The Client shall have the right to terminate this Agreement immediately on written notice to Border Crossing Media Holdings Limited if Border Crossing Media Holdings Limited materially fails to provide all (or a substantial part) of the Services in accordance with this Agreement. The Client shall promptly notify Border Crossing Media Holdings Limited of such failure in writing and on receipt of such notice, Border Crossing Media Holdings Limited shall have a period of 30 days in which to remedy the failure. If the material failure is not remedied within the 30 day period, the Client shall have the right to terminate that part of the Services to which the material failure relates. In the event of such termination, the unaffected part of the Services shall continue in full force and effect.

16.4 Either party may terminate if the other party has any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up (other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation), dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if a distress, execution or other legal process is levied against any of its assets which is not discharged or paid out in full within three Business Days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the non-terminating party is incorporated, resident or carries on business.

17. Consequences of termination

17.1 On termination or expiry of the Agreement for any reason and without prejudice to any other remedy available to Border Crossing Media Holdings Limited the Client shall immediately pay to Border Crossing Media Holdings Limited:

17.1.1 any sums due to date under the terms of the Agreement; and

17.1.2 in the event of termination by reason of the Client’s breach of the Agreement, any further sums which would but for the termination of the Agreement have fallen due by the end of Border Crossing Media Holdings Limited’s engagement.

17.2 Termination or expiry of the Agreement for any reason shall not affect the accrued rights and liabilities of the parties to the Agreement on the date of termination or expiry.

18. Non-solicitation

18.1 The Client undertakes that it will not (and it will ensure that any subsidiary, associated company of the Client or any person connected with it will not) directly or indirectly recruit as an employee or engage as an independent contractor any person employed or so engaged by Border Crossing Media Holdings Limited in connection with the services provided hereunder for a period of six months after such person last provided services to the Client.

18.2 In the event that the Client is in breach of the undertaking in clause 1, the Client and Border Crossing Media Holdings Limited agree and the Client will pay liquidated damages of a sum equal to 75% of the annual remuneration or payment and any other benefits payable to the relevant individual by Border Crossing Media Holdings Limited at the rate payable during the week immediately prior to such individual ceasing to provide services to Border Crossing Media Holdings Limited.

19. Publicity and announcements

19.1 The Client agrees that, subject to clause 12,

19.1.1 Border Crossing Media Holdings Limited may make reference to the Client as a client in its publicity materials;

19.1.2 Border Crossing Media Holdings Limited shall have the right to publicise its provision of the Services and Deliverables to the Client, and any relevant quantitative outcomes and/or qualitative feedback, in materials promoting or advertising Border Crossing Media Holdings Limited;

19.1.3 Border Crossing Media Holdings Limited shall receive the necessary authorisations and permissions to use text or video testimonials submitted by the Client to Border Crossing Media Holdings LimitedX.

19.2 In the event of objection by the Client on reasonable grounds, Border Crossing Media Holdings Limited shall not refer to the Client or make any reference to the Services or Deliverables provided.

20. Dispute resolution

20.1 In the event of any dispute arising between the parties in connection with the Agreement, the parties will in good faith seek to resolve that dispute through mediation. The mediator shall be agreed upon within seven days of one party requesting mediation. Unless otherwise agreed, the parties shall share equally the costs of the mediation. If the dispute is not resolved within 30 days or one of the parties refuses to participate in mediation, the dispute shall be resolved by way of litigation. Nothing in this clause shall prevent either party seeking a preliminary injunction or other judicial relief at any time if in its judgment such action is necessary nor shall Border Crossing Media Holdings Limited be precluded from issuing proceedings or taking any other step in relation to the non-payment of monies due.

21. General

21.1 Amendments

No amendment of this Agreement shall be effective unless it is in writing and signed by or on behalf of each of the parties.

21.2 Subcontracting and assignment

21.2.1 The Client agrees that Border Crossing Media Holdings Limited may delegate or subcontract the provision of all or any of the Services to such third parties as it deems fit without the Client’s consent;

21.2.2 Notwithstanding such delegation or subcontracting Border Crossing Media Holdings Limited shall remain responsible for ensuring that the Services are performed in accordance with this Agreement.

21.3 Force Majeure

21.3.1 Neither party shall be liable to the other party for any delay or non‑performance of its obligations under the Agreement to the extent that its performance is interrupted or prevented by any act or omission beyond its reasonable control including an act of God, national emergency, war, prohibitive governmental regulation or any other cause beyond the reasonable control of the parties;

21.3.2 Where performance of the obligations under the Agreement is rendered impossible by a force majeure event, the parties shall be released from their obligations whereupon all money due under the Agreement shall be paid.

21.4 Warranty of authority

Each of the parties warrants its power to enter into the Agreement and that it has obtained all necessary approvals to do so.

21.5 Waiver

Except as otherwise stated in the Agreement, the rights and remedies of each party under the Agreement are in addition to any other rights or remedies under the Agreement or the general law, and may be waived only in writing and specifically. Failure by either party to enforce at any time or for any period any one or more of the terms or conditions of the Agreement shall not be a waiver of them or the right at any time subsequently to enforce all terms and conditions of the Agreement.

21.6 Entire agreement

Each party acknowledges that the Agreement (as varied) contains the entire agreement between the parties with respect to the subject matter of the Agreement and supersedes and extinguishes any prior drafts, agreements, undertakings, understandings, promises or conditions, whether oral or written, express or implied between the parties relating to such subject matter. In the event of a conflict between the Scope of Work and these terms and conditions the Scope of Work shall prevail.

21.7 Severability

To the extent that any provision of this Agreement is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, then that provision shall be deemed not to be a part of this Agreement, and it shall not affect the validity, lawfulness or enforceability of the remainder of this Agreement nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.

21.8 No reliance

Each party acknowledges that it has not relied upon any oral or written representations made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it.

21.9 No partnership or agency

Nothing in the 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.

21.10 Rights of third parties

A person who is not a party to the Agreement has no rights under the Contracts (Rights of Third parties) Act 1999 to enforce, or to enjoy the benefit of, any provision of the Agreement.

21.11 Notices

21.11.1 Any notice to be served on either of the parties by the other shall be sent by pre-paid recorded delivery or registered post to the registered office address of the relevant party or such other address substituted in writing (and if more than one address any such address) and shall be deemed to have been received by the addressee within 72 hours of posting;

21.11.2 Any notice of proceedings or other notices in connection with or which would give effect to such proceedings may without prejudice to any other method of service be served upon any party in accordance with clause 14.1;

21.11.3 In the event that the Client is resident outside United Kingdom, its address for service in the United Kingdom shall be the address for service nominated by the Client and notified to Border Crossing Media Holdings Limited and any time limits in any proceedings shall not be extended by virtue only of the foreign residence of the Client.

21.12 Survival of obligations

The provisions of clauses 4, 7, 12, 13, 15, 16, 17, 18, 21 and any other clauses which expressly or impliedly survive expiry or termination of the Agreement for any reason whatsoever shall continue in full force and effect after expiry or termination.

21.13 Governing law and jurisdiction

21.13.1 The Agreement and any dispute or claim arising out of or in connection with it (including any non-contractual claims or disputes) shall be governed by and construed in accordance with the laws of England and Wales and any proceedings arising out of or in connection with the Agreement may be brought in any court of competent jurisdiction in England or Wales.

21.13.2 The submission by the parties to such jurisdiction shall not limit the right of Border Crossing Media Holdings Limited to commence any proceedings arising out of the Agreement in any other jurisdiction it may consider appropriate.

Last updated

This document was last updated on 31/07/2023.