Terms & Conditions

Master Terms & Conditions of Contract (“Conditions”)

1. PURPOSE OF THESE CONDITIONS
1.1. The purpose of these Conditions is to establish the general terms and conditions applicable to services to be rendered by the Company to the Client from time to time.

1.2. The parties shall enter into one or more Service Agreements (as defined below) describing the responsibilities and obligations specific to the applicable services.

1.3. The Client’s attention is particularly drawn to the provisions of condition 16 (Limitation of Liability).

2. DEFINITIONS & INTERPRETATIONS
2.1. Definitions

In these Conditions, and any Contract (as defined below), the following definitions shall apply unless the context requires otherwise.

"Authorised Representative" means, in respect of each party, the person identified as such in the Quotation Form or the Order Form, or such other person as may be notified in writing by a party from time to time to the other party.

“Business Day” means any day, other than a Saturday, a Sunday or a public holiday in England, when the banks are open for business in London.

“Client” means the entity identified as such in the Order Form.

“Company” means Telappliant Limited, a company incorporated under the laws of England & Wales, registration no. 04632756 and whose registered is at 35 St Olav’s Court, City Business Centre, Lower Road, Rotherhithe, London SE16 2XB and whose principal business address is at Layden House 76-86 Turnmill Street, London, EC1M 5QU.

“Contract” means the contract between the Company and the Client for the supply of Services in accordance with these Conditions.

“Contract Manager” bears the meaning given in condition 5.3.1.

“Deliverables” means all documents, products and materials developed by the Company or its agents, subcontractors, consultants and employees in relation the Services in any form, including computer programs, data, reports and specifications (including drafts).

“Effective Date” means bears the meaning given in condition 3.2.

“Fees” means the fees payable by the Client for the supply of Services as set out in the Order Form and/or the relevant Service Agreement.

“Initial Term” means the initial period during which the Company is to provide the Services to the Client and is that period specified as such in the Order Form or the Service Agreement, as the case may be, or, if none is specified, a period of 12 months starting on and including the Effective Date.

“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfaircompetition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

“Order Form” means the Client’s order for the Services as set out in an order form completed by the Client or the Client’s written acceptance of a Quotation Form, as the case may be.

“Pre-existing Materials” means all documents, information and materials provided by the Company relating to the Services which existed prior to the Effective Date, including computer programs, data, reports and specifications.

“Quotation Form” means the written quotation that Company provides to Client that lists the services, the duration for its provision and the prices applicable thereof.

“Renewal Term” means the further period (following the Initial Term or another Renewal Term) during which the Company is to provide the Services to the Client and is that period specified as such in the Order Form or the Service Agreement, as the case may be, or, if none is specified, a period of twelve months commencing on and including the day immediately following the last day of the Initial Term or the previous Renewal Term, as the context requires.

“Service Agreement” means the written agreement which describes or specifies the Services and contains additional terms particular to those Services.

“Service Levels” means the performance standards set out in the Service Agreement in accordance with which the Company is to provide the Services.

“Services” means the services, including the Deliverables, supplied by the Company to the Client as set out in the Service Agreement.

“Term” means the Initial Term together with any Renewal Term.

“Unforeseen Event” bears the meaning given in condition 17.2.1.

2.2. Interpretation
The following rules of interpretation shall apply in these Conditions (and any Contract made under it):

2.2.1. condition, clause and paragraph headings are for ease of reference only and shall not affect interpretation;

2.2.2. a reference to a condition is to a condition of these Conditions;

2.2.3. a reference to one gender includes any other gender;

2.2.4. words in the plural shall include the singular and likewise the other way around;

2.2.5. a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

2.2.6. a reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it;

2.2.7. if there is a conflict between these Conditions and the terms of a Service Agreement or other documents applicable to the Contract, these Conditions shall prevail;

2.2.8. where the words include(s), including or in particular are used in this agreement, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them; and

2.2.9. any obligation in the Contract on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.

3. BASIS OF CONTRACT
3.1. The Order Form constitutes an offer by the Client to purchase Services in accordance with these Conditions and the terms of the relevant Service Agreement.

3.2. The Order Form shall only be deemed to be accepted when the Company issues written acceptance of the Order Form at which point and on which date the Contract shall come into existence (the “Effective Date”).

3.3. The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.

3.4. Subject to condition 3.5, any samples, drawings, descriptive matter or advertising issued by the Company, and any descriptions or illustrations contained in the Company's catalogues, brochures or websites, are issued or published for the sole purpose of giving an approximate idea of the Services described in them and they shall not form part of the Contract or have any contractual force.

3.5. For particular Services, the Company may publish the description applicable for that Service on the Company’s website and, in such circumstances, the Company shall ensure the relevant Service Agreement contains a URL to that description.

3.6. These Conditions and the relevant Service Agreement apply to the Contract 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.

3.7. Any Quotation Form issued, or quotation given by the Company shall not constitute an offer, and is only valid for a period of 30 (thirty) days from its date of issue.

4. TERM
4.1. The Company shall start to provide the Services to the Client on the first day of the Initial Term.

4.2. The Company shall continue to provide the Services for the Initial Term unless the Contract is terminated earlier in accordance with condition 15. The term of the Contract shall automatically extend for the Renewal Term at the end of the Initial Term and at the end of each Renewal Term, unless the Client gives written notice to the Company 30 (thirty) days before the end of the Initial Term or the relevant Renewal Term, to terminate the Contract at the end of the Initial Term or the relevant Renewal Term, as the case may be.

5. SERVICES
5.1. The Company shall provide the Services to the Client on the terms and conditions of the Contract.

5.2. Use of Facilities
5.2.1. The Client shall:

(a) provide, for Company, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Client's premises, office accommodation, data and other facilities as reasonably required by the Company in order to supply the Services and such access shall be within the Client’s normal business hours unless agreed otherwise;

(b) be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the Services;

(c) inform the Company of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Client's premises;

(d) ensure that all its 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 relevant United Kingdom standards or requirements; and

(e) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services before the date on which the Services are to start.

5.2.2. The Company shall use reasonable endeavours to observe all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Client's premises and that have been communicated to it under condition 5.2.1(e), provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.

5.3. Key Personnel
5.3.1. Each party shall appoint a contract manager (“Contract Manager”) who shall have authority contractually to bind that party on all matters relating to the Services and shall notify the other party of the identity of and contact details for such Contract Manager. Each party shall use reasonable endeavours to ensure that the same person acts as the Contract Manager for that party throughout the Term, but may replace them from time to time where reasonably necessary in the interests of that party’s business.

5.3.2. Each party warrants that its Authorised Representative has authority contractually to bind it on all matters relating to the Contract.

5.3.3. A party’s Contract Manager may be the same person as its Authorised Representative.

5.4. Account Management
5.4.1. During the Term, the parties’ respective Contract Managers shall meet from time to time to review the performance of the Contract. The parties shall mutually agree the timing and location of such meetings but in the absence of agreement the Company’s position shall prevail.

5.4.2. If a Contract Manager is not available to attend a meeting held under condition 5.4.1 that party’s Authorised Representative shall attend in their place.

5.5. Assignment and Subcontractors
5.5.1. The Company, with the consent of the Client (such consent not to be unreasonably withheld), may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Contract.

5.5.2. If the Company authorises or appoints a sub-contractor to perform any of the Company’s obligations on its behalf, the Company shall ensure that the sub-contractor’s contract: (a) contains terms no less onerous than those in the Contract; and (b) terminates automatically on termination of the Contract for any reason. In any event the Company shall remain responsible for all acts and omissions of its sub-contractors and the acts and omissions of those employed or engaged by the sub-contractors as if they were the Company’s own.

5.5.3. The Client shall not assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under Contract without the prior written consent of the Company, such consent not to be unreasonably withheld or delayed.

5.6. Services to and from competitors
5.6.1. The Client agrees and acknowledges that the Company may provide similar services to the Services to competitors of the Client.

5.6.2. The Company agree and acknowledges that the Client is free to procure services from the Company’s competitors provided that such services do not restrict or preclude performance of the Services by the Company and subject to the provisions of condition 7.3.

6. SERVICE LEVELS
6.1. Quality
6.1.1. The Company shall supply the Services to the Client materially in accordance with the Service Agreement (and any specification referred to in it).

6.1.2. The Company shall use all reasonable endeavours to meet any performance dates specified in the Order Form, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

6.1.3. The Company warrants to the Client that: (a) the Services will be provided using reasonable care and skill; (b) where the Company has agreed a Service Level, it shall use reasonable endeavours to ensure the standard of performance meets or exceeds the Service Levels specified in the relevant Service Agreement; and (c) where the parties have not agreed a Service Level, the Company will use reasonable endeavours to provide Services at a level that meet or exceed generally accepted industry standards.

6.2. Reporting
The Company shall provide the Client with performance reports in a form and at time intervals determined by the Company acting reasonably.

6.3. Remedies
If the Company fails to meet the Service Levels, then, subject to condition 6.4, the Client’s sole remedies shall be to require the Company: (a) to complete the performance of the Services as near as commercially reasonably possible to the applicable Service Level; and (b) to use commercially reasonable efforts to carry out such additional work as is necessary, without charge to the Client, to correct the Company’s failure.

6.4. Exclusions
The Company shall not be in breach of the Contract nor have any liability to the Client for failing to attain a particular Service Level if such breach or failure is due to:

6.4.1. an Unforeseen Event (subject to the provisions of condition 17.2);

6.4.2. a negligent act or omission of the Client or its officers, employees or agents;

6.4.3. a negligent act or omission of a Client’s third party contractor (other than the Company); or

6.4.4. the Client’s failure to follow the Company’s reasonable instructions or preventive measures of which the Company has, in either case, previously given written notice to the Client as being necessary to attain or maintain the Service Levels.

7. CHANGES IN THE SCOPE
7.1. Change Control Procedure.
7.1.1. If either party wishes to change the scope or execution of the Services (a “Change”), it shall submit details of the Change to the other in writing. In either circumstance, the Company shall, within a reasonable time, provide a written estimate to the Client of: (a) the likely time required to implement the Change; (b) any necessary variations to the Fees arising from the Change; and (c) any other impact of the Change on the relevant Service Agreement.

7.1.2. Any recommendation for a Change made by the Company shall remain valid for the Client’s consideration for a period of 20 Business Days unless agreed otherwise in writing.

7.1.3. If the Client wishes the Company to proceed with the Change, the Company has no obligation to do so unless and until the parties have agreed the necessary variations to its Fees, the Services, and any other relevant terms of the Contract to take account of the Change and the Contract has been varied in accordance with condition 17.5.

7.1.4. Notwithstanding condition 7.1.3, the Company may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature or scope of the Services or the Fees.

7.1.5. The Company may charge for the time it spends assessing a request for change from the Client on a time incurred basis at its then applicable rates.

7.2. New Services
The Company shall not be obliged to provide any new services to the Client unless: (a) both the parties have signed a written agreement varying the Contract or entered into a new Service Agreement and, in either case, this shall include agreement as to the fees for such new services.

7.3. Cooperation with Third Parties
If the Client appoints a third party to provide services which may directly or indirectly impact on the Company’s provision of the Services, the Company shall cooperate with such a third party subject to the following:

7.3.1. the Company shall not be obliged to disclose its Confidential Information to that third party unless the Client procures that that third party enters into binding confidentiality undertakings with the Company on terms no less onerous than those set out in the Contract; and

7.3.2. if the Company, acting reasonably, believes the third party’s provision of the new service is likely to impact on the scope of the Services or require the Company to expend extra effort or materials, the parties shall agree any necessary changes to the Contract (including the Fees) in accordance with condition 7.1.

8. INTELLECTUAL PROPERTY RIGHTS
8.1. Rights in Deliverables and Pre-existing Materials.
As between the Client and the Company, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by the Company. Subject to condition 8.2, the Company licenses all such rights to the Client free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Deliverables and the Services. If the Contract is terminated the licence granted under this condition 8.1 shall automatically terminate.

8.2. Third Party Rights in Pre-Existing Materials.
8.2.1. The Client acknowledges that, where the Company does not own any of the Pre-existing Materials, the Client's use of rights in Pre-existing Materials is conditional on the Company obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Company to license such rights to the Client.

8.2.2. The Company shall defend the Client against any claim arising as a result of the Company’s failure to obtain a licence required under condition 8.2.1, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that: (a) the Company is given prompt notice of any such claim; (b) the Client provides reasonable co-operation to the Company in the defence and settlement of such claim, at the Company's expense; and (c) the Company is given sole authority to defend or settle the claim.

9. CHARGES AND PAYMENTS
9.1. Fees
In consideration of provision of the Services by the Company, the Client shall pay the Company the Fees, as varied from time to time in accordance with the terms of the Contract.

9.2. Additional Fees for Changes in Scope
The Client shall pay such additional fees to the Company as the parties agree pursuant to a change in the scope under condition 7.

9.3. Fees - All Inclusive
Unless otherwise indicated, the Fees are inclusive of all costs and expenses including hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Company engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by the Company for the supply of the Services.

9.4. Taxes and Duties
The Fees are exclusive of all taxes (including Value Added Tax), levies, duties, fees or charges. All such taxes, levies, duties, fees or charges that pertain to the Services shall be shown separately in the invoices raised under condition 9.5.

9.5. Invoicing
9.5.1. The Company shall invoice the Client in advance for the Fees together with any applicable taxes, levies, duties, fees or charges at the appropriate rate. Each invoice shall describe the Services to be provided and any applicable taxes, levies, duties, fees or charges in sufficient detail.

9.5.2. The Client shall pay each invoice which is properly due and submitted to it by the Company, in full and in cleared funds, within 30 days of receipt to a bank account nominated in writing by the Company.

9.6. Pro-ration
The Company shall calculate all periodic Fees on a calendar month basis and these will be pro-rated for any partial month, unless otherwise agreed in writing.

9.7. Non-Payment
Without prejudice to any other right or remedy that it may have, if the Client to pay any amount payable by it under the Contract, the Company may:

9.7.1. charge interest on such sum from the due date for payment (as provided for in condition 9.5.2) at the annual rate of 4% above the base rate from time to time of Royal Bank of Scotland Plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment or, in the alternative, claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and, in either case, the Client shall pay the interest (together with the sum due) immediately on demand; and

9.7.2. having escalated the issue of non-payment to the Client’s Contract Manager, suspend all Services until payment has been made in full.

9.8. Change in Rates
9.8.1. Subject to condition 9.8.2, the parties agree that the Company may review and increase the Fees, provided that the Fees cannot be increased more than once in any 12 month period. The Company shall use its reasonable endeavours to give the Client written notice of any such increase three months before the proposed date of that increase. If such increase is not acceptable to the Client, it may, within 14 days of such notice being received or deemed to have been received in accordance with condition 17.4, terminate the agreement by giving 30 days’ written notice to the Company.

9.8.2. The Client acknowledges and agrees that any call rates provided for under a Service Agreement are not controlled by the Company and those rates may change. In these circumstances the Company will give 7 days notice to the Client. The Client is advised to follow Company’s web site and Twitter feed (http://twitter.com/voiptalktweets) for the latest applicable rates. All such call rates will be billed in accordance with the terms of the relevant Service Agreement.

9.9. Effect of Termination
All sums payable to the Company under the Contract shall become due immediately on its termination, despite any other provision. This condition 9.9 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.

10. DATA AND REPORTS
10.1. Provision of data
The Client shall provide the Company with any data or information the Company may reasonably require to enable the Company to provide Services in accordance with the terms of the Contract. The parties shall agree in good faith the form and timescales for the provision of such data or information. All of the Client’s data and information shall remain the exclusive property of the Client.

11. CONFIDENTIALITY
11.1. For the purposes of this condition 11,
"Confidential Information" means confidential information (however recorded, preserved or disclosed) disclosed by a party to the other party including but not limited to: (a) any information that would be regarded as confidential by a reasonable business person relating to: (i) the business, affairs, customers, clients, suppliers, plans of the Disclosing Party; and (ii) the operations, processes, product information, know-how, designs, trade secrets or software of the Disclosing Party but not including any information that: (b) is or becomes generally available to the public other than as a result of its disclosure by the Receiving Party in breach of this agreement; or (c) was, is or becomes available to the Receiving Party on a non-confidential basis from a person who, to the Receiving Party's knowledge, is not bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from disclosing the information to the Receiving Party; (d) is developed by or for the Receiving Party independently of the information disclosed by the Disclosing Party; or (e) was lawfully in the possession of the Receiving Party before the information was disclosed to it by the Disclosing Party;

“Disclosing Party” means a party to the Contract which discloses or makes available directly or indirectly Confidential Information; and

“Receiving Party” means a party to the Contract which receives or obtains directly or indirectly Confidential Information.

11.2. The Receiving Party shall keep in strict confidence all Confidential Information disclosed to it by the Disclosing Party, its employees, agents or subcontractors.

11.3. The Receiving Party shall restrict disclosure of such Confidential Information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.

11.4. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of this disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this condition 11.4, it takes into account the reasonable requests of the other party in relation to the content of this disclosure.

11.5. The Receiving Party may, provided that the Receiving Party has reasonable grounds to believe that the Disclosing Party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first notifying the Disclosing Party of such disclosure.

11.6. All Confidential Information shall remain the property of the Disclosing Party. Each party reserves all rights in its Confidential Information. No rights, including, but not limited to, Intellectual Property Rights, in respect of a party's Confidential Information are granted to the other party and no obligations are imposed on the Disclosing Party other than those expressly stated in the Contract.

11.7. The Receiving Party acknowledges that damages alone would not be an adequate remedy for the breach of any of the provisions of this condition 11. Accordingly, without prejudice to any other rights and remedies it may have, the Disclosing Party shall be entitled to the granting of equitable relief (including without limitation injunctive relief) concerning any threatened or actual breach of any of the provisions of this condition 11.

11.8. The obligations of confidentiality in this condition 11 shall survive termination or expiry of the Contract and shall endure for 12 months immediately following such termination or expiration.

12. DATA PROTECTION
12.1. For the purposes of this condition 12,
“Data Controller” bears the meaning set out in section 1(1) of the Data Protection Act 1998;

“Data Subject” means an individual who is the subject of Personal Data;

“Personal Data” bears the meaning set out in section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, in respect of which the Company is the Data Controller and in relation to which the Processor is providing services under this agreement; and

“Processing” and “process” bear the meaning set out in section 1(1) of the Data Protection Act 1998.

12.2. Company’s Obligations
12.2.1. The Client and the Company acknowledge that for the purposes of the Data Protection Act 1998, the Client is the Data Controller and the Company is the data processor in respect of any Personal Data.

12.2.2. The Company shall process the Personal Data only in accordance with the Client’s instructions from time to time and shall not process the Personal Data for any purpose other than those expressly authorised by the Client.

12.3. Warranties
12.3.1. Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.

12.3.2. The Company warrants that, having regard to the state of technological development and the cost of implementing any measures, it will: (a) take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to: (i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and(ii) the nature of the data to be protected; and (b) take reasonable steps to ensure compliance with those measures.

12.4. Data Subjects
The Client acknowledges that the Company is reliant on the Client for direction as to the extent to which the Company is entitled to use and process the Personal Data. Consequently, the Company will not be liable for any claim brought by a Data Subject arising from any action or omission by the Company, to the extent that such action or omission resulted directly from the Client's instructions.

12.5. “Credit checks”
The Client acknowledges and agrees that the Company may submit details of the Client (including its name, address, details of its officers, and payment records) to a credit reference agency for the purpose of determining its credit-worthiness. The Client agrees to co-operate to the fullest extent possible with any reasonable request made in relation to a credit check.

13. FURTHER WARRANTIES
As at the Effective Date, the Company and the Client each represent, warrant and covenant for the benefit of the other, the following:

13.1. it has taken all necessary action and has all requisite power and authority to enter into and perform the Contract in accordance with its terms;

13.2. compliance with the terms of the Contract shall not breach or constitute a default under: (a) any agreement or instrument to which it is a party or by which it is bound; or (b) any order, judgment, decree or other restriction applicable to the warranting party; and

13.3. it agrees to comply, and to reasonably assist the other in complying, with all applicable laws, regulations and ordinances as they apply to the Contract.

14. DISPUTE RESOLUTION
If a dispute arises out of or in connection with the Contract or the performance, validity or enforceability of it (a “Dispute”) then, except as expressly provided in the Contact, the parties shall follow the dispute resolution procedure set out in this condition 14.

14.1. Negotiate in good faith
14.1.1. Either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (a “Dispute Notice”), together with relevant supporting documentation. On service of the Dispute Notice, the parties’ respective Authorised Representatives shall attempt in good faith to resolve the Dispute; and

14.1.2. if the Authorised Representatives are for any reason unable to resolve the Dispute within 30 days of it being referred to them, either party may initiate mediation in accordance with condition 14.2.

14.2. Mediation
14.2.1. The parties will attempt to settle any Dispute that remains unresolved under condition 14.1.2 by mediation in accordance with the Centre for Effective Dispute Resolution (“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 a mediation. A copy of the request shall be sent to CEDR Solve, c/o CEDR, International Dispute Resolution Centre, 70 Fleet Street, London, EC4Y 1EU.

14.2.2. The mediation shall start not later than 28 days after the date of the ADR Notice.

14.2.3. The commencement of a mediation shall not prevent the parties commencing or continuing court proceedings.

14.3. Continued Performance
Subject to condition 9.7.2, both parties will continue to perform their respective duties and obligations under the Contract, while the parties seek to resolve the dispute, unless such obligations are lawfully terminated or expire.

15. TERMINATION
15.1. Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:

15.1.1. the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;

15.1.2. the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;

15.1.3. the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;

15.1.4. the other party 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 (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

15.1.5. the other party commences negotiations with all, or any class of, its creditors with a view to rescheduling any of its debts, or makes a proposal for, or enters into any compromise or arrangement with, its creditors;

15.1.6. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party;

15.1.7. an application is made to court, or an order is made, for the appointment of an administrator, a notice of intention to appoint an administrator is given, or an administrator is appointed over the other party;

15.1.8. a floating charge holder over the assets of that other party has become entitled to appoint, or has appointed, an administrative receiver;

15.1.9. a person becomes entitled to appoint a receiver over the assets of the other party, or a receiver is appointed over the assets of the other party;

15.1.10. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;

15.1.11. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 15.1.4 to condition 15.1.10 (inclusive); or

15.1.12. the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.

15.2. Either party may terminate the Contract without liability to the other on giving 30 days’ written notice to the other if there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001). If there is such a change of control of the Company, the Company shall give written notice to the Client of that change within 30 days of its occurrence and the Client may terminate the Contract in accordance with the previous sentence. If the Client does not terminate the Contract under this condition 15.2, the benefit and burden of the Contract shall be deemed to be assigned to the party gaining control of the Company and the Client shall be deemed to have released the Company from all its obligations and liabilities under the Contract.

15.3. The Company may terminate the Contract for convenience by giving 3 months’ advance written notice to the Client.

15.4. The Client may terminate the Contract on 30 days’ notice: (a) in accordance with condition 4.2; or (b) if it does not accept a change to the Fees made in accordance with condition 9.8.

15.5. On termination of the Contract for any reason:
15.5.1. the Client shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt;

15.5.2. the Client shall return all of the Pre-existing Materials and Deliverables. If the Client fails to do so, then the Company may, on reasonable notice, enter the Client's premises and take possession of them. Until they have been returned or repossessed, the Client shall be solely responsible for their safe keeping;

15.5.3. the accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination;

15.5.4. will, for the sake of clarity, result in the termination of all Service Agreements in force at the time of such termination; and

15.5.5. conditions which expressly or by implication have effect after termination shall continue in full force and effect, including the following conditions: condition 8 (Intellectual Property Rights), condition 11 (Confidentiality), condition 12 (Data Protection), condition 14 (Dispute Resolution), condition 16 (Limitation of liability), condition 17.4 (Notices) and condition 17.8 (Governing law, Jurisdiction).

15.6. Unless agreed otherwise, the Fees payable by the Client under condition 15.5.1 for Services supplied by the Company shall be calculated in proportion to the actual number of days that the Company supplied the Services and the number of days in the relevant billing cycle.

16. LIMITATION OF LIABILITY
THE CLIENT'S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION 16
16.1. This condition 16 sets out the entire financial liability of a party (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the other party in respect of:

16.1.1. any breach of this agreement however arising;

16.1.2. any use made by the Client of the Services, the Deliverables or any part of them; and

16.1.3. any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.

16.2. The Client shall be liable to pay to the Company, on demand, all reasonable costs, charges or losses sustained or incurred by the Company (including loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Client's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Client in writing.

16.3. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

16.4. Nothing in the Contract limits or excludes the liability of:

16.4.1. a party for death or personal injury resulting from its negligence;

16.4.2. a party for any damage or liability incurred by the other party as a result of fraud or fraudulent misrepresentation;

16.4.3. a party for any liability which may not be excluded at law;

16.4.4. a party for any breach of its obligations under condition 8, condition 11 or condition 12; or

16.4.5. the Client for any costs, charges or losses arising out of or in connection with condition 16.2; or

16.5. Subject to condition 16.2, condition 16.3 and condition 16.4,
16.5.1. neither party shall under any circumstances whatever be liable for: (a) loss of profits; (b) loss of business; (c) depletion of goodwill and/or similar losses; loss of anticipated savings; (d) loss of contract; (e) loss of corruption of data or information; and (f) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and

16.5.2. a party's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall in all circumstances be limited to amount equal to 125% of the aggregate Fees paid by the Client in the 12 month period immediately preceding the event giving rise to a claim.

17. GENERAL
17.1. Severability
17.1.1. If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.

17.1.2. If any provision of the Contract is declared or found to be illegal, unenforceable or void, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties' original commercial intention.

17.2. Unforeseen Events
17.2.1. A party, provided that it has complied with the provisions of condition 17.2.2, shall not be in breach of the Contract, nor liable for any failure or delay in performance of any obligations under the Contract arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (an “Unforeseen Event”), including but not limited to acts of God, fire, flood, earthquake, windstorm or other natural disaster; war, embargo, terrorist attack, civil commotion or riots, compliance with any law, adverse weather conditions. strike, or the intervention of any governmental authority. In such circumstances, subject to condition 17.2.3, the time for performance of the obligations shall be extended accordingly.

17.2.2. Any party that is subject to an Unforeseen Event shall not be in breach of the Contract provided that it promptly notifies the other party in writing of the nature and extent of the Unforeseen Event causing its failure or delay in performance;

17.2.3. If the Unforeseen Event prevails for a continuous period of more than 30 days, either party may terminate this agreement by giving 7 days' written notice to all the other party. On the expiry of this notice period, the Contract will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of the Contract occurring prior to such termination.

17.3. Relationships
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

17.4. Notices
17.4.1. Any notice to given under the Contract by a party to the other party: (a) shall be sent for the attention of the receiving party’s Authorised Representative, at the address or fax number specified in the Order Form (or to such other address, fax number or person as that party may notify to the other, in accordance with the provisions of this condition 17.4); and (b) shall be: (i) delivered personally (including delivery by any commercial delivery service) with acknowledgment received; (ii) by registered or certified mail, postage prepaid, return receipt requested; or, (iii) by fax.

17.4.2. If a notice has been properly sent or delivered in accordance with this condition

17.4, it will be deemed to have been received: (a) if delivered personally, at the time of delivery; (b) if delivered by commercial courier, at the time of signature of the courier's receipt; (c) if sent by fax, at the time of transmission provided an original is received by the addressee by any commercial delivery service within two (2) Business Days of such fax ; or (d) if sent by registered or certified mail, at the time of signature on the mail receipt.

17.4.3. For the purposes of this condition 17.4: (a) all times are to be read as local time in the place of deemed receipt; and (b) if deemed receipt under this clause is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt), the notice is deemed to have been received when business next starts in the place of receipt.

17.4.4. The provisions of this condition 17.4 shall not apply to the service of any process in any legal action or proceedings.

17.4.5. A notice required to be given under the Contract shall not be validly served if sent by e-mail.

17.5. Variation
No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their Authorised Representatives).

17.6. Waivers
No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

17.7. Third Party Rights
No one other than a party to the Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.

17.8. Governing Law and Jurisdiction
The Contract shall be governed by and construed in accordance with the laws of England. The courts of England shall have the exclusive jurisdiction to any matter, claim or dispute arising out of or in relation to the Contract.

 

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