TERMS OF SERVICE (UK)
For Client’s Purchasing or using under trial or pilot, Voyage Control Services through Voyage Control Ltd (the UK entity)
Updated 25th April 2018
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING VOYAGE CONTROL
This agreement (together with the documents referred to in it) sets out the terms on which the Client may use the Software either purchased or under trial. Please read this agreement carefully before starting to use the Software. By using the Software, you are confirming, on the Client’s behalf, that the Client accepts the terms and conditions of this agreement and that the Client agrees to comply with it. If the Client does not agree to the terms and conditions of this agreement or you are not authorised to bind the Client, you must not use the Software.
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Company: Voyage Control Limited is a company incorporated and registered in England and Wales with company number 06793287 whose registered office is at Stapleton House 110 Clifton St, London EC2A 4HT, United Kingdom.
Client: the person or company contracting with the Company under the terms and conditions of this agreement.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential and is: (a) clearly labeled as such; (b) identified as Confidential Information; or (c) information that would be regarded as confidential by a reasonable business person.
Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
Customers: the Client’s customers, suppliers and other third parties that require access to the Site(s) for the Purpose.
Effective Date: the date of this agreement.
EULA: the end user licence agreement.
Extended Term: has the meaning given to it in clause 15.1.
Initial Term: has the meaning given to it in clause 15.1.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks 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.
Legislation: any statute, statutory provision or subordinate legislation or any mandatory rules or guidance issued by any regulatory body having jurisdiction over the applicable party.
Purpose: to assist with the logistics and/or freight management at the Site(s).
Services: the services to be provided by the Company to the Client pursuant to the terms and conditions of this agreement.
Site(s): means the site(s) agreed in writing between the parties from time to time.
Software: the Company’s logistics management software provided via cloud-hosted software as a service (SaaS) and the associated documentation relating to it together with any other products and related documentation developed by the Company and which the Company may permit the Client, by express notice in writing, to market pursuant to this agreement.
Subscription Term: together the Initial Term and any Extended Term.
Trademarks: the trademarks and trade names owned by and/or licensed to the Company from time to time.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or in part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
Voyage Control Service: means only the logistics and freight scheduling solution made available by Voyage Control online via the subscriber login link and other associated web pages designated by Voyage Control, including Software, updates to the Software, API’s and any documentation.
Year: the 12-month period following the Effective Date and each succeeding 12-month period.
1.2 Clause headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having a 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 reenacted from time to time.
1.8 A reference to writing or written includes faxes, e-mail, and all digitally recorded text.
1.9 References to clauses are to the clauses of this agreement.
2.1 The Company shall, during the Subscription Term, provide the Services to the Client on and subject to the terms of this agreement.
2.2 The Company shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time. The Company will ensure any maintenance activity is completed if necessary and will advise the client beforehand so there is no disruption to the four (4) month period of use.
2.3 The Company will, as part of the Services and at no additional cost to the Client, provide the Client with the Company’s standard customer support services (as in effect from time to time). The Company may amend the support services policy in its sole and absolute discretion from time to time. For the avoidance of any doubt, the Company’s standard customer support services do not include support services offered to Customers.
- Supply of Software
3.1 The Company hereby grants to the Client a non-exclusive, non-transferable right to use the Software during the Subscription Term solely for the Purpose on and subject to the terms of this agreement.
3.2 During the Subscription Term the Client may grant its Customers the right to access the Software solely to further the Purpose.
3.3 The Company shall, during the Subscription Term, provide such updates or new releases to the Software as such updates or new releases become generally available.
3.4 The Company is entitled to make changes to the Voyage Control Service which do not adversely affect the Software and shall give written notice of such changes to the Client as soon as reasonably practicable.
3.5 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, promptly notify the Company.
3.6 Subject to clause 3.7, the rights provided under this clause 3 are granted to the Client in relation to the Site(s) only, and, in the absence of express written consent, shall not be considered granted to any other site, subsidiary or holding company of the Client.
3.7 The Client may, at its election transfer its right to use the Software in relation to one or more Site(s) to another site by providing at least 30 days written notice to the Company.
- The Client’s obligations and undertakings
4.1 The Client undertakes that it shall not, and shall procure that its employees, consultants, agents and subcontractors shall not:
(a) during the term of this agreement, distribute or create any products which compete with the Software;
(b) at any time (including after the termination or expiry of this agreement howsoever arising), other than as expressly permitted by clause 3.2, distribute the Software;
(c) at any time (including after the termination or expiry of this agreement howsoever arising), except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
(d) except as expressly set out in clause 3:
(i) use the Software to provide services to third parties; or
(ii) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software available to any third party, or
(iii) attempt to obtain, or assist third parties in obtaining, access to the Software.
4.2 The Client shall not, and shall procure that its employees, consultants, agents and subcontractors shall not, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) in a manner that is otherwise illegal or causes damage or injury to any person or property; and the Company reserves the right, without liability or prejudice to its other rights to the Client or its Customers, to disable the Client’s and/or the Customer’s access to the Software if the Company reasonably believes there has been (or might be) a breach of the provisions of this clause.
4.3 The Client undertakes and agrees with the Company to:
(b) refrain from amending or varying the terms of the EULA;
(c) employ a sufficient number of suitably qualified personnel to ensure the proper fulfilment of the Client’s obligations under this agreement;
(d) within 14 days of a written request from the Company at any time, and from time to time, provide such information as is reasonably requested by the Company about the Client’s processes and controls to support compliance with this agreement;
(e) upon request provide the Company with such information about its Customers as is reasonably required by the Company for the purposes of managing and enforcing the terms of the EULA with such customers; and
(f) inform the Company immediately of any changes in ownership or Control of the Client and of any change in its organisation or method of doing business which might affect the performance of the Client’s duties in this agreement.
4.4 For the duration of the Subscription Term, the Client hereby grants the Company the irrevocable right to conclude the EULA and bind the Client to the relevant terms of the EULA.
- The Company’s obligations and undertakings
The Company undertakes:
(a) to provide such information and support as may be reasonably requested by the Client to enable it properly and efficiently to discharge its duties under this agreement; and
(b) to approve or reject any promotional information or material submitted by the Client within 14 days of receipt.
- Prices and payment
6.1 The fees for the Services shall be calculated in accordance with the methodology as agreed in writing between the Company and the Client.
6.2 Any and all expenses, costs and charges incurred by the Client in the performance of its obligations under this agreement shall be paid by the Client unless the Company has expressly agreed beforehand in writing to pay such expenses, costs and charges.
6.3 For annual contracts, the Company will invoice the Client annually. The Company will invoice the client in advance of the Effective Date and thereafter in advance of each Year in accordance with the terms of this clause 6. For singular events, the Company will send an invoice before use of the platform occurs, which must be paid within 30 days of receiving the invoice.
6.4 The Client shall pay the full amount invoiced to it by the Company in relevant currency within 30 days of the date of invoice but no later than the Effective date or the first day of the Year thereafter.
6.5 All amounts due under this agreement shall be paid by the Client to the Company in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.6 The Client shall be responsible for the collection, remittance and payment of any or all taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the purchase, importation, sale, lease or other distribution of the Software.
6.7 If the Client fails to make any payment due to the Company under this agreement by the due date for payment, then, without limiting the Company’s remedies under clause 15:
(a) the Client shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount; and
(b) the Company shall be entitled to suspend access to the Software without any liability.
- Advertising, promotion and Trademarks
7.1 The Client shall not use the Company’s Trademarks unless and until it has obtained the Company’s prior written consent. The Client shall in any event:
(a) observe all reasonable directions and instructions given to it by the Company in relation to the promotion and advertisement of the Software to the extent that such promotions or advertisements refer to the Software or otherwise use the Trademarks;
(b) conduct its business in a manner that reflects favourably at all times on the Company; and
(c) avoid deceptive, misleading or unethical practices that are, or might be, detrimental to the Company, the Software or the public.
8.1 Each party shall comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act of 2010.
8.2 The Client shall ensure that any person associated with the Client who is performing services or providing goods in connection with this agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Client in this agreement (“Relevant Terms”). The Client shall in all circumstances be responsible for the observance and performance by such persons of the Relevant Terms, and shall in all circumstances be directly liable to the Company for any breach by such persons of any of the Relevant Terms howsoever arising.
8.3 Breach of this clause 8 shall be deemed a material breach, which is irremediable, under clause 15.2(a).
- Intellectual Property Rights
9.1 All Intellectual Property Rights in and to the Software and the Trademarks belong, and shall belong, to the Company and/or its licensors.
9.2 The Client shall, at the expense of the Company, take all such steps as the Company may reasonably require to assist the Company in maintaining the validity and enforceability of the Intellectual Property Rights of the Company during the term of this agreement.
9.3 The Client shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with any Intellectual Property Rights of the Company and shall not omit or authorise any third party to omit to do any act which, by its omission, would have that effect or character.
9.4 Other than the licences expressly granted under this agreement, neither party grants any licence of, right in or makes any assignment of any of its Intellectual Property Rights. In particular, except as expressly provided in this agreement, the Client shall have no rights in respect of any trade names or trademarks used by the Company in relation to the Software or their associated goodwill, and the Client hereby acknowledges that all such rights and goodwill shall inure for the benefit of and are (and shall remain) vested in, the Company. To the extent that any goodwill associated with the Trademarks or the Software accrues to the Client, the Client hereby immediately assigns to the Company with full title guarantee all such goodwill.
9.5 At the request of the Company, the Client shall do or procure to be done all such further acts and things (including the execution of documents) as the Company shall reasonably require to give the Company the full benefit of this clause 9.
9.6 The Client shall promptly give notice in writing to the Company in the event that it becomes aware of:
(a) any infringement or suspected infringement of the Trademarks or any other Intellectual Property Rights in or relating to the Software; and
(b) any claim that any Software or the use, sale or other disposal of any Software, whether or not under the Trade Marks, infringes the rights of any third party.
9.7 In the case of any matter falling within clause 9.6(a):
(a) the Company shall, in its absolute discretion, determine what action if any shall be taken in respect of the matter; and
(b) the Company shall have sole control over and shall conduct any consequent action as it shall deem necessary; and
(c) the Company shall pay all costs in connection with that action and shall be entitled to all damages and other sums which may be paid or awarded as a result of any such action;
9.8 In the case of any matter falling within clause 9.6(b):
(a) the Company and the Client shall consult to decide what steps shall be taken to prevent or terminate the infringement and the proportions in which they shall share the cost of those steps and any damages and other sums which may be awarded in their favour or against them; and
(b) failing agreement between the parties, either party shall be entitled to take all action as it shall consider to be necessary or appropriate at its own expense to defend such a claim and shall be entitled and subject to all damages and other sums which may be recovered or awarded against it as a result of any such action,
the foregoing states the Client’s sole and exclusive rights and remedies, and the Company’s entire obligations and liability, in the case of any matter falling under clause 9.6(b).
9.9 Each party shall, at the request and expense of the other, provide all reasonable assistance to the other (including, but not limited to, the use of its name in, or being joined as a party to, proceedings) in connection with any action to be taken by the other party, provided that that party is given such indemnity as it may reasonably require against any damage to its name.
10.1 Subject to the terms and conditions of this agreement, the Company hereby grants to the Client a non-exclusive, revocable, non-transferable licence to use the Trademarks on the landing webpages that are controlled by the Client.
10.2 The Client shall describe any landing webpages that are controlled by the Client as “Powered by Voyage Control” but shall not represent itself as an agent of the Company for any purpose, nor pledge the Company’s credit or give any condition or warranty or make any representation on the Company’s behalf or commit the Company to any contracts. Further, the Client shall not without the Company’s prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of Software which are inconsistent with those contained in the promotional material supplied by the Company (including, without limitation, the EULA) or otherwise incur any liability on behalf of the Company howsoever arising.
10.3 The Client shall ensure that each reference to, and use of, any of the Trademarks by the Client is in a manner approved from time to time by the Company and accompanied by an acknowledgement in a form approved by the Company that the same is a Trademark (or registered Trademark) of the Company.
10.4 The Client shall not:
(a) use any of the Trademarks in any way which might prejudice their distinctiveness or validity or the goodwill of the Company;
(b) use in relation to the Software any Trademarks other than the Trademarks without obtaining the prior written consent of the Company; or
(c) use any Trademarks or trade names so resembling any Trademark or trade names of the Company as to be likely to cause confusion or deception.
11.1 Each party may have access to Confidential Information of the other party under this agreement. A party’s Confidential Information shall not include information that:
(a) is or becomes publicly known through no act or omission of the receiving party; or
(b) was in the other party’s lawful possession prior to the disclosure; or
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
11.3 Each party agrees to take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
11.4 This clause 11 shall survive termination of this agreement for any reason.
- Protection and processing of personal data
12.1 Each party shall comply with its respective obligations under the provisions of the General Data Protection Regulation 2018 (the “Regulation”) and references in this clause to “data processor”, “data controller” and “personal data” shall have the meanings defined in the Act.
12.2 Where a party or any of its sub-contractors, as part of the fulfilment of its obligations under this agreement, processes personal data as a data processor on behalf of the other party acting as a data controller:
(a) that party shall, and shall procure that its sub-contractors shall:
(i) act only on instructions from the other party when processing personal data provided to it under this agreement, and keep records of all such processing;
(ii) comply with the other party’s instructions in relation to the processing of personal data as such instructions are given and varied from time to time by the other party;
(iii) at all times take all appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
(iv) not transfer any personal data outside the European Union without the other party’s prior written consent; and
(v) immediately notify the other party if it receives any complaint, notice or communication which relates directly or indirectly to the processing of personal data under this agreement, provide full cooperation and assistance in relation to any such complaint, notice or communication.
(b) the other party may from time to time serve on the processing party an information notice requiring that party, within such time and in such form as is specified in the information notice, to give to the other party such information as the other party may reasonably require relating to:
(i) compliance by the processing party or by its sub-contractors with its obligations to the other party under this agreement in connection with the processing of personal data; and
(ii) the rights of data subjects, including but not limited to subject access rights;
(c) the processing party shall provide to the other party on request a copy of all personal data held by it pursuant to this agreement, in the format and on the media reasonably specified by the other party, and shall promptly inform the other party if any such data is lost or destroyed or becomes damaged, corrupted, or unusable. The processing party will restore such data at its own expense.
- Warranties and indemnity
13.1 Each party represents, warrants and undertakes that:
(a) it has full capacity and authority and all necessary consents to enter into and to perform this agreement and to grant the rights and licences referred to in this agreement and that this agreement is executed by its duly authorised representative and represents a binding commitment on it; and
(b) it shall comply with all applicable Legislation in the performance of its obligations under this agreement.
13.2 The Company warrants to the Client that the Software licensed by it under this agreement will operate substantially in accordance with, and perform, the material functions and features of the Voyage Control Service.
13.3 The Client shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Company arising out of or in connection with:
(a) the Client’s breach or negligent performance or non-performance of this agreement;
(b) any claim made against the Company by a third party for death, personal injury or damage to property, to the extent that such claims are arise out of or relate to the acts or omissions of the Client, its employees, agents, subcontractors or Customers.
13.4 Liability under this indemnity is conditional on the Company discharging the following obligations. If any third party makes a claim, or notifies an intention to make a claim, against the Company which may reasonably be considered likely to give rise to a liability under this indemnity (a “Claim”), the Company shall:
(a) as soon as reasonably practicable, give written notice of the Claim to the Client, specifying the nature of the Claim in reasonable detail;
(b) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Client (such consent not to be unreasonably conditioned, withheld or delayed); and
(c) subject to the Client providing security to the Company to the Company’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, take such action as the Client may reasonably request to avoid, dispute, compromise or defend the Claim.
- Limitation of liability
14.1 The following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
(a) any breach of this agreement howsoever arising; and
(b) any representation, misrepresentation (whether innocent or negligent) statement or tortious act or omission (including without limitation negligence) arising under or in connection with this agreement.
14.2 Except as expressly and specifically provided in this agreement, all warranties, conditions and other terms implied by statute, common law or otherwise are, to the fullest extent permitted by law, excluded from this agreement.
14.3 Nothing in this agreement excludes the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence; or
(b) for fraud or fraudulent misrepresentation.
14.4 Subject to clause 14.3, the Company shall not in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
(a) loss of profits; or
(b) loss of business; or
(c) depletion of goodwill or similar losses; or
(d) loss of anticipated savings; or
(e) loss of goods; or
(f) loss of use; or
(g) loss or corruption of data or information; or
(h) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
14.5 The Company’s total aggregate liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement including any appropriate risk management steps taken by the client should the system not work during the required period, shall in all circumstances be limited to the amount actually paid by the Client to the Company under this agreement in the 12 months preceding the date on which the claim arose.
- Term and termination
15.1 This agreement shall commence on the Effective Date. Unless terminated earlier in accordance with clause 15.2 or clause 15.3 or this clause, this agreement shall continue for one (1) Event (“Initial Term”) and the Client shall notify the Company (“Extended Term”) at the end of the Initial Term of its requirements to an Extended Term or additional requirements to use the system on a year-round basis. Either party may give written notice to the other party, not later than 90 days before the end of the Initial Term or the relevant Extended Term, to terminate this agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.
15.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment; or
(b) the other party commits a material breach of any term of this agreement 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; or
(c) the other party is unable to pay its debts as they fall due, admits inability to pay its debts, is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or 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 to similar to any of the events mentioned in this clause 15.2(c).
15.3 The client may at its election terminate its right to use the Software (but not this agreement) in relation to one or more Site(s) by providing at least 30 days written notice to the Company. The Client shall not incur any fees or charges after termination of its right to use the Software in relation to one or more Site(s).
15.4 Without prejudice to any other rights or remedies to which the Company may be entitled, the Company may terminate the agreement without liability to the Client if:
(a) there is a change of control of the Client; or
(b) the Client challenges or disputes the validity of any of the Company’s Intellectual Property Rights; or
(c) the Client purports to assign any of its rights or obligations under this agreement.
- Effects of termination
16.1 Upon termination or expiry of this agreement for any reason:
(a) the Client shall (at its sole cost) return (or at the Company’s option, destroy) all media on which the Software are held and the Client shall stop combining the Software with the Client Services;
(b) the Client shall promptly return to the Company, or otherwise dispose of as the Company may instruct, all samples, technical pamphlets, catalogues, advertising materials, specifications and other materials, documents or papers whatsoever sent to the Client and relating to the Company’s business (other than correspondence which has passed between the parties) which the Client may have in its possession or under its control; and
(c) the accrued rights of the parties as at termination or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced.
16.2 Subject to the foregoing provisions of this clause 16.1, all rights and licences of the Client under this agreement shall terminate.
16.3 The termination of this agreement shall not of itself give rise to any liability on the part of the Company to pay any compensation to the Client for loss of profits or goodwill, to reimburse the Client for any costs relating to or resulting from such termination, or for any other loss or damage.
- Force majeure
Neither party shall in any circumstances be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Client or any other party), failure of a utility service or transport or telecommunications 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, storm or default of suppliers or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for three months, the party not affected may terminate this agreement by giving 30 days’ written notice to the other party.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
19.2 If any provision or part-provision of this agreement 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.
- Entire agreement
20.1 This agreement 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 this agreement 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 this agreement.
20.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
22.1 The Client shall not, without the prior written consent of the Company, assign, mortgage, charge, declare a trust over or deal in any other manner with all or any of its rights or obligations under this agreement.
22.2 The Company may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement.
- No partnership or agency
23.1 Nothing in this agreement 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.
23.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
- Third party rights
No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
- Rights and remedies
The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
26.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be:
(a) 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); or
(b) sent by fax to its main fax number; or
(c) sent by email to:
(i) email@example.com, in the case of the Company; and
(ii) in the case of the Client, the email address provided to the Client during registration.
26.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) 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;
(c) if sent by fax, at 9.00 am on the next Business Day after transmission;
(d) if sent by email, at the time the notice is sent, provided that the sender did not receive a delivery failure notification.
26.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
- Governing law
This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of England and Wales.
The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with this agreement, its subject matter or its formation (including non-contractual disputes or claims).