Terms & conditions
General Terms of Trading
Important notice. These General Terms and Conditions of Trading ("Terms") govern the supply by ECN of digital out-of-home advertising services. The Terms apply to all Orders accepted by ECN. By submitting an Order, the Client confirms that it has read, understood and accepts these Terms. ECN operates a group-wide policy framework which includes anti-bribery and corruption, anti-modern slavery, sanctions compliance, information security and data protection policies, copies of which are available on request.
1. Definitions and interpretation
In these Terms, the following definitions apply:
- "Advertisement Copy" means the digital advertising creative, materials, designs, files, content and any associated artwork supplied by or on behalf of the Client for display by ECN.
- "Advertiser" means the brand owner, manufacturer or other party on whose behalf advertising services are ultimately purchased, whether or not such party places the Order directly.
- "Affiliate" means in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party, where "control" means ownership of more than 50% of the voting rights or equivalent equity interests.
- "Agency" means a media buying agency, media planning agency or other intermediary that places an Order with ECN on behalf of an Advertiser, whether acting as agent, mandataire or otherwise.
- "Agreement" means the contract between ECN and the Client comprising the Booking Confirmation and these Terms.
- "Applicable Laws" means all laws, statutes, regulations, codes of practice, industry standards and self-regulatory rules from time to time in force and applicable to the performance of the Agreement, including in the United Kingdom the CAP Code and rulings of the Advertising Standards Authority, in France the Code de la consommation and rulings of the Autorité de Régulation Professionnelle de la Publicité (ARPP), and in Germany the Gesetz gegen den unlauteren Wettbewerb (UWG) and rulings of the Deutscher Werberat.
- "Booking Confirmation" means the document or documents (which may be headed "Booking Confirmation", "Advertising Contract", "Insertion Order" or similar) issued by ECN confirming the Order, the Sites, the Display Period, the Fees and any other commercial terms.
- "Business Day" means a day other than a Saturday, Sunday or public holiday in the country in which the relevant ECN entity is incorporated.
- "Client" means the person, firm, agency or company identified as the client, advertiser or buyer in the Booking Confirmation, which may be the Advertiser, an Agency, or both jointly.
- "Confidential Information" has the meaning given in clause 13.
- "ECN" means the relevant entity within the Executive Channel Network group identified as the contracting party in the Booking Confirmation, being one of: (i) Executive Channel Europe Ltd, registered in England and Wales (company number 06695755), whose registered office is at 10 Norwich Street, London, EC4A 1BD, United Kingdom (in respect of Orders for display in the United Kingdom and France); or (ii) Executive Channel Deutschland GmbH, registered in the Commercial Register of the Local Court (Amtsgericht) of Frankfurt am Main under HRB 127066, whose business address is at Mainzer Landstraße 51, 60329 Frankfurt am Main, Germany (in respect of Orders for display in Germany), each of which is part of the Executive Channel Network group ultimately owned by Executive Channel Holdings Pty Ltd.
- "Data Protection Laws" means all laws relating to the processing of personal data and privacy applicable to the performance of the Agreement, including (as applicable) the UK GDPR and the Data Protection Act 2018, Regulation (EU) 2016/679 (the EU GDPR) and the French Loi Informatique et Libertés, and the German Bundesdatenschutzgesetz (BDSG).
- "Display Period" means the period during which ECN is to display the Advertisement Copy, as set out in the Booking Confirmation.
- "Fees" means the fees, charges and other amounts payable by the Client to ECN as set out in the Booking Confirmation, exclusive of VAT and any other applicable taxes.
- "Force Majeure Event" has the meaning given in clause 14.
- "Intellectual Property Rights" means patents, utility models, rights to inventions, copyright and neighbouring and related 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, 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 that subsist or will subsist now or in the future in any part of the world.
- "Order" means an order placed by the Client with ECN for the supply of advertising services, which is subject to acceptance by ECN through the issue of a Booking Confirmation.
- "Site(s)" means the digital screen(s) and locations at which ECN is to display the Advertisement Copy, as identified in the Booking Confirmation.
- "Term" means the duration of the Agreement, commencing on the date of the Booking Confirmation and ending on the later of (i) the end of the Display Period, and (ii) the date on which all Fees and any other amounts due under the Agreement have been paid in full.
- "VAT" means value added tax chargeable in the United Kingdom or any equivalent tax chargeable elsewhere (including TVA in France and Umsatzsteuer / Mehrwertsteuer in Germany).
In these Terms, unless the context otherwise requires: (a) a reference to a clause is a reference to a clause of these Terms; (b) clause headings are for ease of reference only and shall not affect interpretation; (c) the singular includes the plural and vice versa; (d) a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and includes any subordinate legislation made under it; (e) 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 preceding those terms; and (f) a reference to "writing" or "written" includes email but not fax.
2. Application of these terms and formation of agreement
These Terms 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.
An Order constitutes an offer by the Client to purchase advertising services in accordance with these Terms. The Order shall only be deemed accepted when ECN issues a Booking Confirmation, at which point the Agreement shall come into existence.
The Agreement (comprising the Booking Confirmation and these Terms) constitutes the entire agreement between the parties in relation to its subject matter and supersedes all prior discussions, correspondence, negotiations, drafts, arrangements, understandings or agreements between them.
In the event of any conflict between the Booking Confirmation and these Terms, the Booking Confirmation shall prevail in respect of the specific matter addressed, but only to the extent expressly stated.
2.1 Agencies and advertisers
Where an Order is placed by an Agency on behalf of an Advertiser:
- the Agency warrants that it has full power and authority to bind the Advertiser to the Agreement, that the Advertiser has been informed of and accepts these Terms, and that the Agency has obtained all necessary approvals from the Advertiser in respect of the Order;
- the Agency shall be the Client and shall be primarily responsible for the performance of all obligations of the Client under the Agreement, including payment of the Fees;
- the Advertiser shall be bound by, and shall procure compliance with, all warranties, undertakings and indemnities given by the Client under these Terms, in particular those in clause 6 (Client Warranties and Indemnity);
- any limitation, revocation or expiry of the Agency’s authority to act for the Advertiser shall not affect the validity of any Order accepted by ECN before the date on which ECN receives written notice of such limitation, revocation or expiry.
Unless expressly agreed otherwise in the Booking Confirmation, all production work for the Advertisement Copy shall be undertaken by ECN at the Client’s cost.
3. Display obligations
Subject to the Client’s compliance with these Terms (including timely supply of compliant Advertisement Copy and payment of Fees), ECN shall display the Advertisement Copy at the Sites during the Display Period in accordance with the Booking Confirmation.
ECN shall use commercially reasonable endeavours to procure the display of the Advertisement Copy as scheduled. ECN does not warrant uninterrupted or error-free display, and brief interruptions due to routine maintenance, scheduled downtime, network issues, hardware faults, software updates, or third-party acts or omissions shall not constitute a breach of the Agreement, provided ECN takes reasonable steps to remedy them.
Where any of the Advertisement Copy is not displayed for any reason for which ECN is responsible, ECN’s sole obligation (and the Client’s sole remedy) shall be to provide make-good display of equivalent value at mutually agreed Sites and times. The Client shall not be entitled to any refund, credit or other compensation in respect of any non-display of the Advertisement Copy.
Audience, impression, traffic, viewability and equivalent measurement data provided by or on behalf of ECN are estimates based on industry-standard methodologies and third-party data sources. They are provided for indicative purposes only and do not constitute warranties or guarantees of audience delivery.
4. Supply and approval of advertisement copy
To enable ECN to meet its obligations under the Agreement, the Client should supply the Advertisement Copy in electronic form and in accordance with ECN’s technical specifications notified to the Client no later than five (5) Business Days prior to the start of the Display Period. ECN will use reasonable endeavours to accept and display Advertisement Copy received later than this, but Advertisement Copy received less than three (3) Business Days prior to the start of the Display Period may result in delay or non-display, technical or quality issues, or display only on a partial or best-efforts basis.
Whether or not the Advertisement Copy is supplied within the timescales referred to above, the Client shall remain liable to pay the Fees in full. ECN shall not be liable for any delay, partial display or non-display of the Advertisement Copy attributable to late or non-conforming supply by the Client, and the Client’s sole remedy in such circumstances shall be such make-good display (if any) as ECN is reasonably able to provide having regard to the lateness of supply and inventory available.
4.1 Right to reject
ECN reserves the absolute right at any time, without liability and without obligation to give reasons, to refuse, suspend, alter, cease to display or remove any Advertisement Copy which in ECN’s reasonable opinion:
- does not comply with Applicable Laws;
- breaches any third-party rights (including Intellectual Property Rights);
- is or may be defamatory, obscene, offensive, misleading or otherwise inappropriate for display in a corporate office environment;
- is incompatible with the Sites’ technical specifications;
- is the subject of complaint by the landlord or owner of any Site, or by any regulatory or competent authority; or
- competes with or conflicts with the rights of any other advertiser holding a domination or category exclusivity in the relevant Site or building.
No exercise by ECN of its rights under this clause 4 shall entitle the Client to any refund, credit or compensation, except where the rejection is solely due to ECN’s prior written approval of materially identical Advertisement Copy, in which case clause 3 shall apply.
4.2 Removal at landlord’s direction
Where the landlord, owner or building manager of any Site requires the display of any Advertisement Copy to be interrupted, modified or discontinued, ECN may, without prior notice to the Client, comply with such requirement and shall (where reasonably possible) provide the Client with a copy (which may be redacted) of the relevant landlord direction. ECN’s sole obligation (and the Client’s sole remedy) shall be to provide make-good display of equivalent value at mutually agreed alternative Sites and times. The Client shall not be entitled to any refund, credit or other compensation in respect of any such interruption, modification or discontinuation, and ECN shall have no further liability to the Client in connection with the landlord’s direction save as set out in clause 8.
5. Fees, invoicing and payment
In consideration of the supply of advertising services, the Client shall pay the Fees to ECN in accordance with the Booking Confirmation. All Fees are exclusive of VAT and any other applicable taxes, which shall be added at the prevailing rate.
Unless the Booking Confirmation requires payment in advance, ECN shall invoice the Client on or after the start of the Display Period, and the Client shall pay each invoice in full and in cleared funds within thirty (30) days of the date of the invoice.
All payments shall be made to the bank account notified by ECN in writing, in the currency stated on the invoice, without set-off, counterclaim, deduction or withholding (other than any deduction or withholding required by law).
5.1 Late payment
Without prejudice to its other rights, if the Client fails to pay any sum on its due date, ECN shall be entitled to:
- charge interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate (or, where the contracting ECN entity is German, at the statutory default interest rate under §288 BGB; or, where French, at the statutory rate under article L.441-10 of the French Code de commerce, plus a fixed indemnity for recovery costs of EUR 40 per invoice), accruing daily from the due date until payment in full, both before and after judgment;
- recover the costs of debt recovery in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 or applicable local equivalent;
- suspend display of the Advertisement Copy and/or withhold further services until payment is received in full; and
- terminate the Agreement in accordance with clause 11.
The Client shall not be entitled to any rebate, discount or volume bonus unless expressly agreed in writing in the Booking Confirmation.
All amounts payable under the Agreement shall be exclusive of bank charges. The Client shall bear any bank, currency conversion or transfer charges incurred in making payment to ECN.
6. Client warranties and indemnity
The Client warrants, represents and undertakes to ECN that:
- it has full right, power and authority to enter into and perform the Agreement;
- it owns or has obtained all necessary licences, consents, clearances, permissions and rights (including all Intellectual Property Rights and rights of personality, image and privacy) to use, reproduce, broadcast and publicly display the Advertisement Copy at the Sites during the Display Period;
- the Advertisement Copy and its display will comply with all Applicable Laws (including consumer protection, advertising, data protection, intellectual property, competition and unfair commercial practices laws);
- the Advertisement Copy is not and will not be defamatory, obscene, fraudulent, deceptive, or in breach of any duty owed to any third party;
- all information supplied by the Client to ECN is accurate and not misleading; and
- it shall comply with ECN’s reasonable directions and policies relating to the supply and display of Advertisement Copy as notified from time to time.
6.1 Indemnity
The Client shall indemnify, keep indemnified and hold harmless ECN and its Affiliates, and each of their respective directors, officers, employees, agents and subcontractors (the "Indemnified Parties"), on demand and on a full indemnity basis, from and against all losses, damages, liabilities, claims, demands, actions, proceedings, awards, fines, penalties, costs and expenses (including legal fees on a full indemnity basis and reasonable management time costed at standard rates) suffered or incurred by any of the Indemnified Parties arising out of or in connection with: (i) any breach by the Client of any of the warranties or undertakings in this clause 6; (ii) any third-party claim that the Advertisement Copy or its display infringes any Intellectual Property Rights or other rights of any person; (iii) any breach by the Client of Applicable Laws; or (iv) any negligence, wilful misconduct or fraud of the Client or its personnel.
The Client’s obligations under this clause 6 shall survive termination or expiry of the Agreement.
7. ECN obligations and compliance
ECN warrants that it shall provide the advertising services with reasonable care and skill, and in compliance with Applicable Laws as they apply to the operation and management of the Sites.
ECN maintains group-wide policies covering anti-bribery and corruption, anti-modern slavery and human trafficking, sanctions and trade compliance, anti-money laundering, information security and data protection. ECN shall comply with such policies and with all Applicable Laws relating to the conduct of its business. Copies of ECN’s policies are available to the Client on request.
Except as expressly stated in these Terms or the Booking Confirmation, all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8. Limitation of liability
Important. This clause sets out the entire financial liability of ECN (including any liability for the acts or omissions of its Affiliates, employees, agents and subcontractors) to the Client. The Client should read this clause carefully and seek independent legal advice if necessary.
8.1 Unlimited liability
Nothing in the Agreement shall limit or exclude ECN’s liability for: (i) death or personal injury caused by its negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any other liability which cannot be limited or excluded by Applicable Laws.
8.2 Excluded losses
Subject to clause 8.1, ECN shall not be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise, for any:
- loss of profits;
- loss of business or business opportunity;
- loss of revenue, anticipated savings or anticipated income;
- loss of goodwill or reputation;
- loss of data or information;
- loss arising from business interruption; or
- any indirect, consequential, special or punitive losses,
in each case howsoever arising.
8.3 Aggregate cap
Subject to clauses 8.1 and 8.2, ECN’s total aggregate liability to the Client arising out of or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise, shall in no circumstances exceed an amount equal to the Fees actually paid by the Client to ECN under the Booking Confirmation giving rise to the claim in the twelve (12) months immediately preceding the date on which the cause of action arose.
8.4 Time limit for claims
No claim shall be brought against ECN unless the Client has given written notice of the claim to ECN within three (3) months of the date on which the Client became aware (or ought reasonably to have become aware) of the circumstances giving rise to the claim, and any such claim shall in any event be barred unless legal proceedings are commenced within twelve (12) months of that date.
The Client acknowledges that the Fees have been calculated on the basis of the limitations and exclusions in this clause 8, and that the allocation of risk in the Agreement is reasonable in the circumstances.
9. Cancellation and postponement
The Client may cancel the Agreement (in whole or in part) by written notice to ECN, subject to payment of the following minimum charges (calculated as a percentage of the value of the cancelled portion of the Booking Confirmation), which the parties acknowledge represent a genuine pre-estimate of ECN’s loss reflecting committed inventory, foregone revenue and lost opportunity:
| Notice period before start of Display Period |
Charge |
| More than 90 days | Nil |
| 76 to 90 days | 15% |
| 61 to 75 days | 30% |
| 46 to 60 days | 40% |
| 31 to 45 days | 70% |
| 11 to 30 days | 90% |
| 10 days or less (or after the start of the Display Period) | 100% |
Postponement of an Order shall be treated as a cancellation and re-booking. Any postponement is at ECN’s discretion, subject to availability of equivalent inventory, and the cancellation charges above shall apply unless ECN agrees otherwise in writing.
All cancellation notices must be delivered in writing in accordance with clause 16 (Notices). The applicable cancellation charge is determined by reference to the date on which ECN receives the notice.
10. Dominations and category exclusivity
The Client acknowledges that it is standard practice in the digital out-of-home advertising industry for ECN to sell "dominations" (under which a single advertiser secures exclusive or near-exclusive display in a particular Site or building) and category exclusivities. Dominations and exclusivities are sold at a premium and are arranged with the consent of the relevant landlord or building manager.
ECN reserves the right to re-allocate any Booking Confirmation that conflicts with a domination or category exclusivity in the relevant Site or building.
Where ECN exercises that right, it shall: (i) give the affected Client not less than two (2) months’ written notice prior to the start of the Display Period (or as much notice as is reasonably practicable in the circumstances); and (ii) provide alternative advertising opportunities of materially equivalent value, audience profile and Display Period at other Sites.
Where ECN is unable to provide alternative opportunities of materially equivalent value, the Client’s sole remedy shall be a pro-rata refund of any Fees paid in respect of the affected portion of the Booking Confirmation. ECN shall not be liable for any other loss or damage (whether reputational, financial or otherwise) arising from such re-allocation, save as set out in clause 8.
11. Termination
Without affecting any other right or remedy available to it, ECN may terminate the Agreement with immediate effect by written notice to the Client if:
- the Client fails to pay any sum due under the Agreement on the due date and remains in default for not less than fourteen (14) days after being notified in writing to make such payment;
- the Client commits a material breach of any term of the Agreement which is irremediable or (if remediable) is not remedied within fourteen (14) days of being notified in writing to do so;
- the Client suspends or threatens to suspend payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (or, in respect of a non-UK Client, any equivalent test of insolvency under the laws of its jurisdiction of incorporation, including the opening of any insolvency, sauvegarde, redressement or liquidation judiciaire proceedings in France or any Insolvenzverfahren in Germany);
- any step or action is taken in connection with the Client entering administration, provisional liquidation, any composition, compromise, assignment or arrangement with its creditors, the appointment of a liquidator, receiver, administrator or administrative receiver, the winding-up or dissolution of the Client (other than a solvent reconstruction), or any equivalent procedure in any jurisdiction;
- the Client suspends, ceases or threatens to suspend or cease the carrying on of all or a substantial part of its business;
- the Client’s financial position deteriorates to such an extent that in ECN’s reasonable opinion the Client’s capability to perform its obligations under the Agreement has been placed in jeopardy.
On termination of the Agreement for any reason, all sums due to ECN under the Agreement shall become immediately payable, and the accrued rights, remedies and obligations of the parties shall not be affected.
Clauses which expressly or by implication are intended to survive termination shall do so, including clauses 1, 5, 6, 8, 11, 12, 13, 15 and 18.
12. Intellectual property
All Intellectual Property Rights in the Advertisement Copy shall remain the property of the Client (or its licensors). The Client grants to ECN a non-exclusive, royalty-free, worldwide licence to use, copy, store, transmit, broadcast and display the Advertisement Copy for the purposes of performing its obligations under the Agreement and for ECN’s reasonable internal record-keeping, marketing and promotional purposes (including in case studies, showreels and credentials presentations) during and after the Term.
All Intellectual Property Rights in the Sites, ECN’s networks, software, screens, technical specifications, audience measurement methodologies, data, reports and proprietary materials shall remain the exclusive property of ECN or its licensors.
12.1 Audience and measurement data
Where ECN provides audience, impression, viewability or other measurement data to the Client, such data is provided for the Client’s internal review purposes only. The Client shall not republish, redistribute, sell, license or otherwise disclose such data to any third party (other than to the advertiser on whose behalf the Client is acting, and to the Client’s and that advertiser’s professional advisers on a need-to-know basis), nor combine such data with any other data set or use it to develop any competing service, in each case without ECN’s prior written consent.
13. Confidentiality
Each party (the "receiving party") shall keep in strict confidence all technical, commercial and financial information and any other information of a confidential nature (including the terms of the Agreement and the Fees) disclosed to it by the other party (the "disclosing party"), its Affiliates, employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain ("Confidential Information").
The receiving party shall: (i) only use such Confidential Information for the purposes of performing its obligations under the Agreement; (ii) only disclose such information to those of its employees, agents, subcontractors and professional advisers who need to know it for such purposes and who are bound by equivalent confidentiality obligations; and (iii) protect such information using no less than the standard of care it uses to protect its own confidential information of similar importance.
The obligations in this clause shall not apply to information which: (i) is or becomes publicly known other than through breach of this clause; (ii) was in the receiving party’s lawful possession before disclosure; (iii) is lawfully received from a third party without restriction on disclosure; (iv) is independently developed without access to the Confidential Information; or (v) is required to be disclosed by law, regulation or any court or regulatory authority of competent jurisdiction (provided that the receiving party gives the disclosing party, where lawful and practicable, prompt prior notice of such requirement).
This clause shall survive termination of the Agreement for a period of five (5) years.
14. Force majeure
A "Force Majeure Event" means any circumstance not within a party’s reasonable control including:
- acts of God, flood, earthquake, fire, storm or other natural disaster;
- epidemic, pandemic or public health emergency;
- war, armed conflict, terrorist attack, civil commotion, riots or sanctions;
- acts of any government or public authority (including the imposition of curfews, lockdowns or restrictions);
- nuclear, chemical or biological contamination;
- collapse of buildings, fire, explosion or accident;
- failure or interruption of utilities, telecommunications, internet or transportation networks;
- cyber-attack, malicious software or denial of service attack;
- industrial action of any kind, including strikes and lockouts (other than industrial action of the affected party’s own workforce);
- interruption or failure of utility service; and
- acts or omissions of the landlord, owner or manager of a Site (including closure of the building or refusal of access).
Provided it has complied with the notification requirements below, neither party shall be in breach of the Agreement nor liable for any failure or delay in performance of its obligations (other than payment obligations) under the Agreement to the extent that such failure or delay is caused by a Force Majeure Event.
The party affected by a Force Majeure Event shall: (i) as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the nature, extent and likely duration of the Force Majeure Event; and (ii) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
If the Force Majeure Event continues for a period of more than thirty (30) consecutive days, either party may terminate the affected portion of the Agreement by giving fourteen (14) days’ written notice to the other party. In such event, ECN shall refund a pro-rata portion of any Fees paid in advance in respect of services not yet provided, but neither party shall have any further liability to the other in respect of the terminated portion of the Agreement.
15. Data protection
Each party shall comply with its respective obligations under Data Protection Laws in connection with the Agreement.
Where the parties exchange personal data (typically limited to business contact details of the parties’ personnel for the purpose of administering the Agreement), each party acts as an independent controller in respect of such personal data and is responsible for determining its own lawful basis for processing.
ECN’s privacy notice, available on ECN’s website, sets out further information about how ECN processes personal data. The Client shall provide a copy of (or link to) ECN’s privacy notice to any individuals whose personal data the Client provides to ECN.
Neither party shall do anything which would cause the other to breach Data Protection Laws.
16. Notices
Any notice given to a party under or in connection with the Agreement shall be in writing and shall be: (i) delivered by hand or by pre-paid first-class post or other next Business Day delivery service to its registered office (in the case of a company) or its principal place of business (in any other case); or (ii) sent by email to the address specified in the Booking Confirmation.
A notice shall be deemed to have been received:
- if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
- if sent by pre-paid first-class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting; and
- 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, provided that no failure or "non-delivery" notification has been received.
This clause 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.
17. General
17.1 Assignment and subcontracting
The Client may not assign, transfer, charge, subcontract or otherwise deal with any of its rights or obligations under the Agreement without ECN’s prior written consent. ECN may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Agreement, and may subcontract or delegate in any manner any or all of its obligations under the Agreement to any Affiliate or third party, provided that ECN remains responsible for the performance of its obligations.
17.2 Variation
No variation of the Agreement shall be effective unless it is in writing and signed by an authorised representative of each party (or, in the case of email, sent from an authorised representative).
17.3 Waiver
A waiver of any right or remedy under the Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy shall constitute a waiver of that or any other right or remedy.
17.4 Severability
If any provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision shall be deemed deleted. Any modification or deletion of a provision shall not affect the validity and enforceability of the rest of the Agreement.
17.5 No partnership or agency
Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership, joint venture or agency between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other.
17.6 Third party rights
No-one other than a party to the Agreement and their permitted successors and assignees shall have any right to enforce any of its terms. The Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement, save that any Indemnified Party may enforce the indemnity in clause 6 directly against the Client.
17.7 Counterparts and electronic signature
The Agreement (including any Booking Confirmation) may be executed in counterparts and by electronic means (including DocuSign or equivalent), each of which when executed shall be an original, and all the counterparts together shall constitute one and the same instrument.
17.8 Cumulative remedies
Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
17.9 Anti-bribery and modern slavery
Each party shall comply with all applicable anti-bribery, anti-corruption, anti-modern slavery and sanctions laws and shall not engage in any activity, practice or conduct which would constitute an offence under such laws. ECN reserves the right to terminate the Agreement immediately on written notice if the Client breaches this clause.
18. Governing law and jurisdiction
The governing law and jurisdiction applicable to the Agreement depend on the contracting ECN entity and Site location, as set out below:
- where ECN is Executive Channel Europe Ltd and the Sites are located in the United Kingdom, 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 laws of England and Wales, and the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction;
- where ECN is Executive Channel Europe Ltd and the Sites are located in France, the Agreement shall be governed by and construed in accordance with the laws of England and Wales, and the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction, save that ECN reserves the right to bring proceedings against the Client before the courts of any jurisdiction in which the Client is domiciled or has assets;
- where ECN is Executive Channel Deutschland GmbH and the Sites are located in Germany, the Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany (excluding the United Nations Convention on Contracts for the International Sale of Goods), and the parties irrevocably agree that the courts of Munich (or, where ECN so elects, the courts of the Client’s registered seat) shall have exclusive jurisdiction.
18.1 Translations
Where these Terms are made available in French or German, such translation is provided for convenience only. In the event of any inconsistency or conflict between the English version and any translated version, the English version shall prevail, except where mandatory local law (including consumer protection laws) requires otherwise.
18.2 Mandatory local law
Nothing in this clause shall override any mandatory provision of local law that cannot be derogated from by agreement, and (where applicable) any consumer’s right to bring proceedings in the courts of its place of domicile.
, End of Terms, Version 2.3. These Terms apply to all Orders accepted by ECN. The relevant ECN contracting entity is identified in each Booking Confirmation.
