Interpretation
The definitions and rules of interpretation in this clause apply in these terms and conditions (Conditions):
Contract |
the Customer's Order and the Charity's acceptance of it, or the Customer's acceptance of a quotation for Services by the Charity under condition 2.2; |
Charity |
Eye of the Fly a registered charity (RCN [1109178]) whose registered office address is 65 Dartford Road, South Shields, Tyne & Wear, NE33 3NL; |
Customer |
the person, firm or company who purchases Services from the Charity; |
Intellectual Property Rights |
all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in goodwill or to sue for passing off, rights in designs, database right, 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 |
the Customer’s written order for the Services or the Charity’s written quotation for Services as the case may be; |
Assignment |
the assignment detailed in the Order; |
Services |
the services to be provided by the Charity under the Contract as set out in the Order; |
Application of conditions
These Conditions shall apply to and be incorporated into the Contract and prevail over any inconsistent terms or conditions contained, or referred to, in the Customer's purchase order, confirmation of order, acceptance of a quotation or specification, or implied by law, trade custom, practice or course of dealing.(a) by a written acknowledgement issued and executed by the Charity; or (b) (if earlier) by the Charity starting to provide the Services, when a contract for the supply and purchase of those Services on these Conditions will be established. The Customer's standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.
Any quotation is valid for a period of 30 days from its date, provided that the Charity has not previously withdrawn it.
Commencement and duration
The Services supplied under the Contract shall be provided by the Charity to the Customer at the date set out in Order and shall continue to be supplied until the Assignment is completed unless the Contract is terminated by one of the parties in accordance with condition 11.Charity's obligations
The Charity shall use reasonable endeavours to provide the Services in accordance with the Contract.
The Charity shall use reasonable endeavours to meet any dates specified by the Customer, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
Customer's obligations
(a) co-operate with the Charity in all matters relating to the Services; (b) provide, for the Charity, at no charge, access to the Customer's premises, data and other facilities as requested by the Charity; (c) inform the Charity of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer's premises. If the Charity's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors or employees, the Charity shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay. The Customer shall be liable to pay to the Charity, on demand, all reasonable costs, charges or losses sustained or incurred by the Charity (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Charity confirming such costs, charges and losses to the Customer in writing. The Customer shall not, without the prior written consent of the Charity, at any time from the date of the Contract to the expiry of six months after the completion of the Assignment, solicit or entice away from the Charity or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of the Charity or otherwise introduced by the Charity in connection with the provision of the Services (or services of a similar nature).Charges and payment
The Customer shall pay each invoice submitted to it by the Charity, in full and in cleared funds, within 30 days of receipt.
Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Charity on the due date, the Charity may: (a) charge interest on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Charity may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and (b) suspend all Services until payment has been made in full. Time for payment shall be of the essence of the Contract.
All sums payable to the Charity under the Contract shall become due immediately on its termination.
Intellectual property rights
As between the Customer and the Charity, all Intellectual Property Rights and all other rights in the product of the Services shall be owned by the Charity. The Charity licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the product of the Services. If the Charity terminates the Contract under condition 11.2 this licence will automatically terminate.Confidentiality and the Charity's property
The Customer shall keep in strict confidence all information of a confidential nature belonging to the Charity disclosed to the Customer by the Charity, its employees, agents or sub-contractors (or otherwise obtained by the Customer). This condition 8 shall survive termination of the Contract, however arising.Limitation of liability
THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF THIS CONDITION
This condition 9 set out the entire financial liability of the Charity (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of (a) any breach of the Contract; (b) any use made by the Customer of the Services; and (c) any representation or tortious act or omission (including negligence) arising under or in connection with the Contract. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
ubject to condition 9.2 and condition 9.3 the Charity shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for loss of profits; or depletion of goodwill and/or similar losses; or loss of anticipated savings; or loss of goods; or loss of contract; or loss of use; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses, and the Charity'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 be limited to the price paid for the Services.
Data protection
The Customer acknowledges and agrees that details of the Customer's name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of the Charity.
Termination
Subject to condition 11.3, the Contract shall terminate automatically on completion of the Assignment.
(a) 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; or (b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or (c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or (d) a receiver is appointed of any of the other party's assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or (e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or (f) the other party ceases, or threatens to cease, to trade; or (g) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
On termination of the Contract for any reason: (a) the Customer shall immediately pay to the Charity all of the Charity's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Charity may submit an invoice, which shall be payable immediately on receipt; and (b) the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.Force majeure
The Charity shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contractor from carrying on its business by acts, events, omissions or accidents beyond its reasonable control.
Variation and Waiver
No variation of the Contract or these Conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties. A waiver of any right under the Contract is only effective if it is in writing.
Severance
If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force and if any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.Rights of third parties
The Contract is for the benefit of the parties to it and is not intended to benefit, or be enforceable by, anyone else.
Notices
Notice given under the Contract shall be in writing, sent to the address or fax number, given in the Contract (or such other address or fax number as the relevant party may notify to the other) and shall be delivered personally, sent by fax or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting.