The following definitions and rules of interpretation apply in these conditions.
1.1. Definitions:
“Acceptable Use Policy” | means the Company’s acceptable use policy or as defined in the Service Description from time to time. |
“Affiliate” | means, in relation to either party, a company which is a subsidiary or holding company of it, or any company which is a subsidiary of any such holding company, “holding company” and “subsidiary” having the meanings ascribed to them in section 1159 Companies Act 2006. |
“Business Day” | means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business. |
“Business Hours” | means the period from 8.00 am to 6.00 pm on any Business Day. |
“Charges” | means the total sum payable for the Services including the Deliverables (if any), as set out in the Order, subject to amendment in accordance with clause 7. |
“Company” | means Cholty35 Holdings Ltd T/A Formation Tech (Company Number 10048550) of Southbank Central Formation Tech, 30 Stamford Street, London, England, SE1 9LQ. |
“Company Equipment”” | any equipment, including tools, systems, cabling or facilities, provided by the Company to the Customer or Customer Affiliate and used directly or indirectly in providing the Services to the Customer, but excluding any such items which are the subject of a separate agreement between the parties under which title passes to the Customer. |
“Company Materials” | all bespoke documents, information, items and materials in any form (including computer programs, program listings, programming tools, reports and drawings) whether owned by the Company or its licensors, or a third party, which are developed or provided by the Company to the Customer in connection with providing the Services. |
“Contract” | means the Customer’s Order and the Company’s acceptance of it in accordance with clause 3.3. |
“Control” | shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control: shall be construed accordingly. |
“Customer” | means the person, firm or company who purchases Services from the Company. |
“Data Protection Legislation” | the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party. |
“Deliverables” | any output of the Services to be provided by the Company to the Customer or Customer Affiliate as specified on an Order Form and any other documents, products and materials provided by the Supplier to the Customer or Customer Affiliate in relation to the providing the Services (excluding the Company’s Equipment). |
“Early Termination Charge” | shall mean: (i) 100% of the Charges payable for the full Initial Term of the applicable Order, deducting any Charges already paid by the Customer for such Order; (ii) any outstanding Charges due at the date of termination; and (iii) any charges incurred by the Company by its Underlying Suppliers. |
“Excess Construction Charges”/”ECCs”
| shall mean excess construction charges identified by a third party supplier. |
“Initial Term” | Shall mean the period of time set out on the Order which commences from the Service Commencement Date; |
“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 which subsist or will subsist now or in the future in any part of the world. |
“Miscellaneous Charges Document” | means the Customer’s document setting out charges for which the Customer may be liable and which are not set out in the Order. |
“Order” | means the Quotation duly signed and returned to the Company in accordance with clause 3.2 to engage the Services of the Company. |
“Pre-existing Materials” | means materials which existed before the commencement of the Services. |
“Quotation”
“Service Commencement Date” | means the document provided to the Customer outlining the proposed Services to be offered, the proposed Charges that would be incurred along with any other relevant information to assist the Customer in placing the Order.
means the date that each Service are ready for use by the Customer as either set out in the Order of by email to the Customer from the Company; |
“Services” | means the services to be provided by the Company to the Customer as agreed between the parties in one or more Orders, including services which are incidental or ancillary to the Services, and as more particularly described in the relevant Orders and/or relevant Service Description. |
“Service Description” | means the descriptions of each Service offered under the Services, as provided at point of sale or project implementation. |
“Service Levels” | shall mean the target performance levels applicable to certain Services as set out in the Order and/or relevant Service Description. |
“Site” | means the site where the Services are to be provided by the Customer to the Company as specified in the Order. |
“Site Software” | means any and all software for the Site provided by the Customer to the Company. |
“Start Date” | means the date the Order is accepted by the Company in accordance with clause 3.3. |
“UK Data Protection Legislation” | all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended. |
“Underlying Supplier” | any third-party organisation(s) that provide/resell products/services to the Company. |
“VAT” | value added tax chargeable under the Value Added Tax Act 1994 or any similar tax chargeable in the UK or elsewhere . |
“Virus” | any thing or device (including any software, code, file or programme) which may: |
1.2 1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of the Contract.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision.
1.9 A reference to writing or written includes email but excludes faxes.
1.10 References to clauses, terms and conditions are to the clauses, terms and conditions of these terms and conditions.
2.1 These Terms and Conditions shall:
2.1.1 apply to and be incorporated in the Contract; and
2.1.2 prevail over any inconsistent terms or conditions contained in or referred to in the Customer’s confirmation of order, specification, or as implied by law, trade custom, practice or course of dealing, but shall not prevail over any special terms included within a Customer’s Order.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Company unless in writing and signed by a duly authorised representative of the Company.
2.3 If there is a conflict between any of the provisions of these Terms and Conditions and any provisions of any schedule (including any conditions within the Order Form and any service terms incorporated therein), the conflict will be resolved according to the following order of priority:
2.3.1 first: conditions set out in the Order (including any amendments);
2.3.2 second: these Terms and Conditions; and
2.3.3 third: the relevant Service Description.
3.1 Any Quotation is valid for a period of 14 days only, unless otherwise stated and the Company may withdraw it at any time during this period by giving immediate notice to the Customer.
3.2 If the Customer wishes to indicate their willingness to engage the Services of the Company they must return a duly signed copy of the Quotation, which will form the Order.
3.3 Acceptance of the Order will take place either upon the Company providing a written acceptance of the Order to the Customer, or the Company’s commencement or execution of work to provide the Services pursuant to the Order (whichever occurs earlier) at which point a Contract is formed.
3.4 The Company reserves its rights to withhold acceptance of the Order pursuant to clause 3.3 for any such reason it deems fit. The return of an Order by the Customer does not guarantee acceptance by the Company.
3.5 If the Customer wishes to amend or vary the Quotation it must contact the Company in writing, and in any event, prior to the return of the Order. The Customer is solely responsible for ensuring that its Order is complete and accurate.
3.6 If a Service Description is not available for any Service offered by the Company, the terms contained within the Order shall contain the necessary information regarding the Service to be provided.
3.7 The Company may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the applicable Contract. Each instalment shall be a separate Contract and no cancellation or termination by either party of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
3.8 No Order which has been acknowledged by the Company may be cancelled by the Customer, except with the agreement in writing of the Company. Any such cancellation is subject to clause 5.6.
3.9 All Services are subject to the Acceptable Use Policy and the Customer shall at all times comply with the Acceptable Use Policy in relation to the Services.
4.1 The Company shall use reasonable endeavours to provide the Services in accordance with the Service Levels and to deliver the Deliverables (if any) to the Customer, in accordance with the Order. Any service credits set out in the Service Levels shall be the Customer’s sole and exclusive remedy in respect of the Company’s breach of such Service Levels.
4.2 All dates supplied by the Company for the provision of the Services shall be treated as approximate only and time shall not be of the essence of the Contract. The Company shall not be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
4.3 The Company reserves the right to amend the Order if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Company shall notify the Customer in any such event.
4.4 The Company warrants to the Customer that the Services will be provided using reasonable care and skill.
4.5 If it becomes necessary to modify any part of the Services, the Company may (and the Customer agrees), by giving the Customer prior reasonable notice, migrate the Customer to the modified service or to a suitable alternative service. The new service provided shall substantially have the same or improved Service Levels to those of the Service as originally contracted. In the event that any proposed modified or alternative Service shall be materially detrimental to the Customer, then either party shall have the option of terminating the relevant Service within an Order which has been modified by giving the other party not less than seven (7) days’ prior written notice (from the date of the proposed migration), and without payment of an Early Termination Charge. If any Service within an Order which has already been migrated is subsequently deemed materially detrimental to the Customer, then either party may terminate the relevant Service within that Order by giving the other party not less than thirty (30) days’ and up to ninety (90) days’ prior written notice, and without payment of an Early Termination Charge for such affected Service.
5.1 The Customer shall be responsible for the accuracy and completeness of the Pre-existing Materials and the Site Software, including the provision of valid up to date licencing of any such software.
5.2 The Customer shall:
5.2.1 ensure that the terms of the Order are complete and accurate;
5.2.2 co-operate with the Company in all matters relating to the Services and the Deliverables (if any);
5.2.3 provide in a timely manner such access to the Customer’s equipment, data and premises (including the Site) and such office accommodation and other facilities, as is requested by the Company, including after termination of the Services, a Contract, or this agreement for the purpose of the Company recovering Company Materials and Company Equipment from the Customer;
5.2.4 provide in a timely manner any Site Software and such information as the Company may request, and ensure that the Site Software and such information is accurate and complete in all material respects;
5.2.5 keep all Company Equipment and Company Materials at the Customer’s premises in safe custody at its own risk, maintain the Company Equipment and Company Materials in good condition until returned to the Company, and not dispose of or use the Company Equipment and Company Materials other than in accordance with the Company’s written instructions or authorisation;
5.2.6 obtain and maintain all licences, consents, and permissions necessary to enable the Company to provide the Services and the Company Equipment and Company Materials and to use the Pre-existing Materials of the Customer and the Site Software (as applicable);
5.2.7 comply with all applicable laws, rules and regulations with respect to the Customer’s activities for the provision of the Services by the Company; and
5.2.8 be responsible (at its own cost) for preparing the Site for the supply of the Services.
5.3 The Customer shall not store, distribute or transmit any Viruses, or any other material in the course of the Customer’s use of the Services that:
5.3.1 is unlawful, harmful, threatening, defamatory, obscene or infringes any third party’s Intellectual Property or other rights;
5.3.2 facilitates illegal activity;
5.3.3 promotes unlawful violence;
5.3.4 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
5.3.5 causes damage or injury to any person or property;
and the Company reserves the right, without liability to the Customer, to disable the Customer’s access to any material that breaches the provisions of this condition or that the Company, in its reasonable opinion, otherwise considers appropriate to do so.
5.4 If the Company’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default“):
5.4.1 without limiting or affecting any other right or remedy available to it, the Company shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Company’s performance of any of its obligations;
5.4.2 the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 5.4; and
5.4.3 the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
5.5 The Customer shall be liable to pay any applicable Charges listed in the Miscellaneous Charges Document upon the occurrence of any of the events listed therein.
5.6 The Customer shall be liable to pay any and all applicable Early Termination Charges where it has terminated a Service for convenience or where the Company terminates a Service pursuant to its rights under the applicable Contract including an amount equal to the last four (4) months’ average usage Charges, where applicable.
5.7 The Customer may terminate a Service within an Order and without payment of an Early Termination Charge by giving the Company 7 days’ written notice where it has been notified in writing that there is an ECC payable, providing that such notice is given to the Company within 7 days of it receiving notice that there is an ECC. The Customer is determined to have accepted the ECC and the relevant Service (and warrants to pay such sums due for the Service, including the ECC) if: a) the Customer accepts the ECC, or b) does not notify the Company that it wishes to terminate the relevant Service in accordance with and within the timelines stipulated in this clause 5.7.
5.8 The Customer shall acknowledge that the Company reserves the right to perform a credit check from time to time without prior notice to the Customer (including before agreeing and entering into any Order), on the Customer and to pass the Customer’s credit history (including details of the Customer’s name, address and payment record) on to credit agencies and/or the court if deemed necessary.
5.9. The Customer shall comply with the Company’s mandatory policies as notified to it from time to time.
5.10. The Customer shall put in place and have at all times comprehensive general liability insurance with a reputable insurance provider, covering public liability, employer’s liability, professional indemnity, personal injury and death, and property damage insurance covering each party’s respective liabilities under the Contract.
5.10 Title in the Company Equipment shall always vest in the Company unless otherwise agreed in writing by the parties, risk in the Company Equipment passes to the Customer on delivery of such Company Equipment to the Customer.
6.1 The Customer shall not, without the prior written consent of the Company, at any time from the date of the Contract to the expiry of 12 months after the completion of the Services, solicit or entice away from the Company or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of the Company.
6.2 Any consent given by the Company in accordance with clause 6.1 shall be subject to the Customer paying to the Company a sum equivalent to 30% of the then current annual remuneration of the Company’s employee or sub-contractor, or 30% of the annual remuneration to be paid by the Customer to such employee or sub-contractor, or £10,000.00, whichever is the greater of the aforementioned three sums.
7.1 In consideration of the provision of the Services by the Company, the Customer shall pay the Charges, and any updated Charges pursuant to this clause 7.
7.2 The Charges can be for either one-off or recurring Services. For one-off Services the Charges will be the total sum as set out in the Order and any additional Charges that may be due in accordance with the Miscellaneous Charges Document. For recurring Services, the Charges will be proportionate to the cost for the respective period as set out in the Order and any additional Charges that may be due in accordance with the Miscellaneous Charges Document but will not constitute the total Charges.
7.3 If the Company’s costs in providing the Services increases, including due to an Underlying Supplier increasing its prices to the Company which form part of the Services or due to law, the Company shall be entitled to increase the Charges in order to recover the additional cost from the Customer.
7.4 The Company shall invoice the Customer for the Charges at the intervals (including without limitation, on or around the Start Date) specified in the Order and/or on or around the Services Start Date. If no intervals are specified the Company shall invoice the Customer on or after the Service Commencement Date and thereafter at the end of each month for Services performed during that month.
7.5 The Customer shall pay each invoice submitted to it by the Company within 14 days of the date of the invoice, to a bank account nominated in writing by the Company from time to time. Time for payment shall be of the essence of the Contract.
7.6 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Company any sum due under the Contract on the due date:
7.6.1 the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.6.1 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
7.6.2 the Company may suspend all or part of the Services until payment has been made in full.
7.7 All sums payable to the Company under this agreement:
7.7.1 are exclusive of VAT, and the Customer or Customer Affiliate shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
7.72 shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.8 The Company may, without prejudice to any other rights it may have, set off any liability of the Customer to the Company against any liability of the Company to the Customer.
7.9 If, at any time whilst using the Services, the Customer exceeds the amount of storage space, bandwidth or other capacity requirements (including software licencing) for the Site set out in the Order, the Service Description or otherwise as agreed between the parties, the Company shall charge the Customer, and the Customer shall pay, the Company’s then excess fees which are in force from time to time.
7.10 The Company may increase the Charges on an annual basis with effect from each anniversary of the Service Commencement Date in line with the percentage increase in the Retail Price Index (All Items) published by the Office for National Statistics in the preceding 12-month period.
7.11 On expiry of any Initial Term, the Company reserves the right to increase the Charges for any Order which has been discounted during such Initial Term of the Order.
7.12 The Company reserves the right to pass on any Charges from Underlying Suppliers for additional services provided.
8.1 If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing.
8.2 If either party requests a change to the scope or execution of the Services, the Company shall, within a reasonable time, provide a written estimate to the Customer of:
8.2.1 the likely time required to implement the change;
8.2.2 any variations to the Company’s charges arising from the change;
8.2.3 the likely effect of the change on the Services and Deliverables (if any); and
8.2.4 any other impact of the change on the terms of the Contract.
8.3 If the Company requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.
8.4 If the Customer wishes the Company to proceed with the change, the Company has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Services and Deliverables (if any) and any other relevant terms of the Contract (and Order) to take account of the change.
9.1 The restrictions on liability in this clause 9 apply to every liability arising under or in connection with this agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.2 Nothing in this agreement limits any liability which cannot legally be limited, including liability for:
9.2.1 death or personal injury caused by negligence;
9.2.2 fraud or fraudulent misrepresentation; and
9.2.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
9.3 Subject to clause 9.2, the Company shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
9.3.1 loss of profits;
9.3.2 loss of sales or business;
9.3.3 loss of agreements or contracts;
9.3.4 loss of anticipated savings;
9.3.5 loss of use or corruption of software, data or information;
9.3.6 loss of or damage to goodwill; and
9.3.7 indirect or consequential loss.
9.4 Subject to clause 9.1, the Company’s total liability to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with a Contract shall be limited to one hundred per cent (100%) of the average annual Charges (calculated by reference to the Charges in successive 12-month periods from the Start Date) and any one-off capital payments paid by the Customer under the relevant Order from which the liability arises.
9.5 The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
9.6 The Company is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
9.7 If the Company’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, the Customer shall in all circumstances be liable to pay to the Company all reasonable costs, charges or losses sustained by it as a result, subject to the Company notifying the Customer in writing of any such claim it might have against the Customer in this respect.
9.8 Unless the Customer notifies the Company that it intends to make a claim in respect of an event within the notice period, the Company shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire three months from that notice. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
10.1 Except where the Customer’s use of the Services is and has at all times been strictly in accordance with the terms of the Contract, the Customer shall defend, indemnify and hold the Company harmless against any and all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) suffered or incurred by the Company arising out of or in connection with the Customer’s use of the Services including without any limitation in respect of any action or claim that the Site Software or the Pre-existing Materials infringe any Intellectual Property Rights of a third party. The indemnity shall apply whether or not the Customer has been negligent or at fault and does not limit any further compensation rights of the Company.
10.2 The Customer acknowledges that all Intellectual Property Rights used by or subsisting in the Company Materials are and shall remain the sole property of the Company or (as the case may be) third party rights, owner.
10.3 The Company shall retain the property and copyright in all documents supplied to the Customer in connection with the Contract and it shall be a condition of such supply that the contents of such documents shall not be communicated either directly or indirectly to any other person, firm or company without the prior written consent of the Company.
10.4 The Company’s Intellectual Property Rights in and relating to the Company Materials shall remain the exclusive property of the Company, and the Customer shall not at any time make any unauthorised use of such Intellectual Property Rights, including by not transferring, assigning or sub-licensing such Intellectual Property Rights, nor authorise or permit any of its agents or contractors or any other person to do so.
10.5 The Customer acknowledges that the Customer’s use of rights in Pre-existing Materials is conditional on the Company obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle the Company to license such rights to the Customer.
10.6 The Customer grants to the Company a licence to use its Intellectual Property Rights for the purpose of the provision of the Services.
11.1 Each party undertakes that it shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Company or its agents, and not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or company of the other party, except as permitted by clause 11.2.
11.2 Each party may disclose the other party’s confidential information:
11.2.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.2; and
11.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
12.1 All materials, equipment, tools, drawings, specifications and data, including, but not limited to Company Materials, supplied by the Company to the Customer shall at all times be and remain the exclusive property of the Company, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Company, and shall not be disposed of or used other than in accordance with the Company’s written instructions or authorisation.
12.2 Nothing in the Contract 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, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including without limitation the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
12.3 The Company may refer to the Customer as being a client of the Company in customer reference lists, sales presentations, advertising and press releases.
12.4 The Customer shall promptly return Company Equipment and Company Materials provided to the Customer as part of a Service provision or on a rental basis once the relevant Order or Service has terminated.12.5 This condition 12 shall survive termination of the Contract, however arising.
13.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 13UPDATE FC is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
13.2 If the Company processes any personal data on the Customer’s behalf when undertaking the Services, the parties record their intention that the Customer shall be the data controller and the Company shall be a data processor and in any such case:
13.2.1 the Customer shall ensure that it is entitled to transfer the relevant personal data to the Company so that the Company may lawfully use, process and transfer the personal data in accordance with the Contract on the Customer’s behalf; and
13.2.2 the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation.
13.3 Each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
13.4 Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this clause 13.
13.5 The Company may authorise a third party (“sub-contractor”) to process the personal data provided that the sub-contractor’s contract:
13.5.1 is on terms which are substantially the same as those set out in this agreement; and
13.5.2 terminates automatically on termination of this agreement for any reason.
14.1 The Contract shall commence on the Start Date and shall continue for the Initial Period as stated in the Order and shall automatically renew thereafter for subsequent periods of 12 months (“Subsequent Terms”) , unless either party gives to the other a minimum of 90 days’ written notice prior to the end of the Initial Term or a Subsequent Term, as applicable.
14.2 Without affecting any other right or remedy available to it including without limitation, the provisions of clause 5.6, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
14.3.1 the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
14.3.2 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;
14.3.3 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
14.3.4 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
14.3.5 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
14.4 Without affecting any other right or remedy available to it, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if:
14.4.1 the Customer fails to pay any amount due under the Contract on the due date for payment; or
14.4.2 there is a change of Control of the Customer.
14.5 Without affecting any other right or remedy available to it, the Company may suspend the supply of Services under the Contract or any other contract between the Customer and the Company if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 14.3.1 to clause 14.3.5, or the Company reasonably believes that the Customer is about to become subject to any of them.
15.1 On termination of the Contract:
15.1.1 the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt and where applicable, the Early Termination Charges pursuant to clause 5.6; and
15.1.2 the Customer shall return all of the Company’s property and any Company Materials and Company Equipment which have not been fully paid for. If the Customer fails to do so, then the Company may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
15.2 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
15.3 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
16.1 The Company shall not in any circumstances have any liability to the Customer under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm or as a result of an epidemic or pandemic.
17.1 A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
18.1 The Company is entitled to make changes to these terms and conditions at any time and the Customer will be subject to any such amended conditions from the date that such changes are made. The Company will use its best endeavours to provide any revised versions to the Customer but it is the Customer’s responsibility to check the Company’s website periodically for any changes. The most recent version of these conditions from time to time shall be held https://www.formationtech.co.uk/general-terms (or any other location that the Company may notify the Customer). Posting changes to these conditions at https://www.formationtech.co.uk/general-terms shall be deemed to be sufficient notice to the Customer of such changes.
18.2 Subject to clause 8, no variation of a Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19.1 If any provision or part-provision of the Contract 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 or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this condition shall not affect the validity and enforceability of the rest of the Contract.
19.2 If any provision or part-provision of the Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
20.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
20.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
20.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
20.4 Nothing in this clause shall limit or exclude any liability for fraud.
21.1 The Customer shall not, without the prior written consent of the Company, assign, transfer, mortgage, charge, sub-contract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
21.2 The Company may at any time assign, transfer, mortgage, charge, sub-contract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
22.1 Nothing in the Contract 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, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including without limitation the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
23.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
24.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case.
24.2 Any notice or communication shall be deemed to have been received:
24.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or
24.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
24.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
25.1 If a dispute arises out of or in connection with a Contract or the performance, validity or enforceability of it (“Dispute”) then the parties shall follow the procedure set out in this clause:
25.1.1 either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, an appropriate representative of the Customer or Customer Affiliate and an appropriate representative of the Company shall attempt in good faith to resolve the Dispute;
25.1.2 if the appropriate representative of the Customer or Customer Affiliate and the appropriate representative of the Company are for any reason unable to resolve the Dispute within 15 days of service of the Dispute Notice, the Dispute shall be referred to a more senior representative of the Customer or Customer Affiliate and a more senior representative of the Company who shall attempt in good faith to resolve it; and
25.1.3 if the senior representative of the Customer or Customer Affiliate and the senior representative of the Company are for any reason unable to resolve the Dispute within 15 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (“ADR notice”) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than 14 days after the date of the ADR notice.
25.2 No party may commence any court proceedings under clause 27 in relation to the whole or part of the Dispute until 30 days after service of the ADR notice, provided that the right to issue proceedings is not prejudiced by a delay.
25.3 If the Dispute is not resolved within 30 days after service of the ADR notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of 30 days, or the mediation terminates before the expiration of the said period of 30 days, the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause 27.
The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including without limitation disputes or claims) are governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).