1.1. In these terms and conditions, the following definitions and rules of interpretation shall apply:
|Affiliate||:||any entity that directly or indirectly Controls, is Controlled by, or is under common Control with the Supplier.|
|Applicable Law||:||all applicable laws, statutes, regulations and codes from time to time in force.|
|Agreement||:||the form used to identify the details of the Customer, specify the Services to be provided and the Charges payable.|
|Business Day||:||a day other than a Saturday, Sunday or public holiday in England when banks are open for business.|
|Charges||:||the sums payable for the Services specified in the Agreement.|
|Contract||:||the contract between the Supplier and the Customer, details of which are set out in the Agreement, the Mandatory Policies and these terms and conditions.|
|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||:||the company, partnership or individual whose details are specified in the Agreement and/or those authorised to deal with and enter into agreements on behalf of the company, partnership or individual.|
|Customer Materials||:||all documents, information, items, logos, images, text and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Supplier in connection with the Services, including the items provided pursuant to clause 4.1.3.|
|Intellectual Property Rights||:||copyright and related rights, trade marks and service marks, business names and domain names, the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights 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.|
|Services||:||the services specified within the Agreement, including services which are incidental or ancillary to such Services.|
|Supplier||:||HR-CL LIMITED (registered company no. 10360799) of Kings Chambers Queens Cross, High Street, Dudley, West Midlands, England, DY1 1QT (‘the Company’).|
|Term||:||the length of time over which the Services are to be provided as specified in the Agreement.|
|VAT||:||value added tax chargeable under the Value Added Tax Act 1994.|
1.3. Clause headings shall not affect the interpretation of these terms and conditions.
1.4. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.5. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a reference to the other genders.
1.7. These terms and conditions shall be binding on, and enure to the benefit of, the parties to these terms and conditions and their respective personal representatives, successors and permitted assigns and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.8. A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.9. A reference to writing or written includes fax and email.
1.10. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.11. A reference to these terms and conditions or to any other agreement or document referred to in these terms and conditions is a reference to these terms and conditions or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of these terms and conditions) from time to time.
1.12. References to clauses are to the clauses of these terms and conditions.
1.13. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- Commencement and duration
2.1. The Contract shall commence on the date of receipt, by the Supplier, of the Agreement, signed by the Customer and shall continue, unless terminated earlier in accordance with clause 9, until the date specified in the Agreement, when it shall terminate automatically without notice.
2.2. Any individual who signs the Agreement on behalf of the Customer shall be deemed to have the necessary authorisations to do so. The Supplier shall not be responsible for investigating the signatory and the Customer shall be bound by the Contract regardless of whether the signatory had express or implied authority to sign on the Customer’s behalf.
- 3. Supplier’s responsibilities
3.1. The Supplier shall use reasonable endeavours to provide the Services in accordance with these terms and conditions in all material respects and shall provide such Services as soon reasonably practicable upon receipt of the completed Agreement and the Customer Materials.
3.2. The Supplier shall appoint an account manager for the Services and that person shall be the point of contact for the Customer in relation to the Services. The Supplier shall use all reasonable endeavours to ensure that the same person acts as the Supplier’s manager throughout the Term of these terms and conditions, but may replace that person from time to time where reasonably necessary in the interests of the Supplier’s business.
- Customer’s obligations
4.1. The Customer shall:
4.1.1. co-operate with the Supplier in all matters relating to the Services;
4.1.2. appoint a manager for the Services, such person (as identified on the Agreement) shall be the point of contact for the Supplier on matters relating to the Services;
4.1.3. provide to the Supplier in a timely manner all Customer Materials and other documents, information, items and materials in any form (whether owned by the Customer or third party) reasonably required by the Supplier in connection with the Services and ensure that they are accurate and complete in all material respects;
4.1.4. ensure that it is aware of and adheres to the Mandatory Policies at all times;
4.1.5. obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to provide the Services, including in relation to the use of the Website and the use of all Customer Materials, in all cases before the date on which the Services are to start;
4.1.6. make the payment of the Charges specified in the Agreement in accordance with clause 5 of these terms and conditions.
4.2. If the Supplier’s performance of its obligations under these terms and conditions is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer and the Supplier may, at its absolute discretion, limit or prohibit access by the Customer to the Services until compliance with the Customer’s obligations is achieved.
- Charges and payment
5.1. In consideration of the provision of the Services by the Supplier, the Customer shall pay the Charges.
5.2. The Charges that shall apply are those set out in the Agreement and these Charges shall be the final agreed sum in respect of the Services listed in the Agreement, taking into account the quantities of the Services requested by the Customer and the Term throughout which the Services are to be provided.
5.3. The Supplier shall invoice the Customer for the Charges in respect of Services to be provided upon receipt of the Agreement signed by the Customer and payment of the Charges specified in the invoice shall be outlined in the Agreement.
5.4. Clause 5.3 shall apply unless alternative payment terms are agreed and specified in the Agreement.
5.5. Without prejudice to any other right or remedy that the Supplier may have, if the Customer fails to pay the Supplier any sum due under these terms and conditions on the due date, the Customer shall, in addition to the payment of the Charges:
5.5.1. pay interest on the overdue amount at the rate of 8% per annum above the base rate from time to time of HSBC Bank plc. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment; and
5.5.2. indemnify the Supplier against the costs of recovery of any Charges, interest and other debts that remain outstanding on the due date, and the Supplier may suspend all or part of the Services until payment has been made in full.
5.6. All Charges payable to the Supplier under these terms and conditions:
5.6.1. are inclusive of VAT; and
5.6.2. 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).
5.7. The Charges may increase in the event of a change in the rate of VAT.
5.8. To the extent permitted by law, if the Customer has an unpaid or outstanding invoice or account balance for any of the Services, the Supplier reserves the right to suspend or terminate the Customer’s use of the Services as well as any other products, including but not limited to those Services where the Customer does not have an unpaid invoice or account balance.
- 6. Intellectual property rights
6.1. In relation to the Services:
6.1.1. the Supplier and its licensors shall retain ownership of all Intellectual Property Rights in the Website, excluding the Customer Materials;
6.1.2. the Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials;
6.1.3. the Customer grants the Supplier and (if required) its Affiliates, or shall procure the direct grant to the Supplier of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the Term of these terms and conditions to display, copy, advertise and modify the Customer Materials for the purpose of providing the Services to the Customer; and this will include unbranded adverts.
6.1.4. the Supplier may sub-license, assign or otherwise transfer the rights granted in clause 6.1.3 to its Affiliates or third parties.
6.2. The Customer:
6.2.1. warrants that the receipt and use of the Customer Materials in the performance of these terms and conditions by the Supplier, its Affiliates, agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
6.2.2. shall keep the Supplier indemnified in full against all costs, expenses, damages and losses, including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by the Supplier as a result of or in connection with any claim brought against the Supplier, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of these terms and conditions of the Customer Materials.
6.3. The Supplier:
6.3.1. shall not be liable to the Customer for any costs, expenses, damages and losses, including any interest, fines, legal and other professional fees and expenses awarded against, incurred or paid by the Customer as a result of or in connection with any claim brought against the Customer for actual or alleged infringement of a third party’s Intellectual Property Rights, to the extent the infringement arises from:
- the use of the Customer Materials during the provision of the Services, or
- the inclusion of the Customer Materials on the Website; or
- compliance with the Customer’s specifications or instructions, where infringement could not have been avoided while complying with such specifications or instructions.
- Compliance with laws and policies
7.1. In performing the obligations under these terms and conditions, the parties shall comply with:
7.1.1. the Applicable Laws from time to time in force; and
7.1.2. the current Mandatory Policies, insofar as they relate to that party.
- 8. Limitation of liability
8.1. Nothing in these terms and conditions shall limit or exclude either party’s liability for:
8.1.1. death or personal injury caused by its negligence;
8.1.2. fraud or fraudulent misrepresentation; or
8.1.3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
8.2. Subject to clause 8.1, the Supplier 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 these terms and conditions for:
8.2.1. loss of profits;
8.2.2. loss of sales or business;
8.2.3. loss of agreements or contracts;
8.2.4. loss of or damage to goodwill;
8.2.5. loss of use or corruption of software, data or information; and
8.2.6. any indirect or consequential loss.
8.3. Subject to clause 8.1, the Supplier’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 these terms and conditions shall be limited to the lesser of the amount of the Charges under the Contract or 10% of the average annual Charges (calculated by reference to the charges in the successive 12 month period from the date of the latest Agreement for the Customer) paid by the Customer under these terms and conditions.
8.4. The terms implied by sections 13, 14 and 15 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these terms and conditions.
- 9. Cancellation
9.1. The Customer shall have the right to cancel the Services immediately by providing notice to the Supplier within 14 days of receipt, by the Supplier, of the Agreement signed by the Customer. Paying only for services used.
9.2. The Customer may not cancel the Services following expiry of 14 days from receipt, by the Supplier, of the Agreement signed by the Customer.
9.3. The Services shall cease upon receipt of the notice by the Supplier provided that the notice is received by the Supplier within 14 days.
10.1. Without affecting any other right or remedy available to it, either party may terminate these terms and conditions with immediate effect by giving written notice to the other party if:
10.1.1. the other party commits a material breach of any term of these terms and conditions 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;
10.1.2. the other party repeatedly breaches any of the terms of these terms and conditions 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 these terms and conditions;
10.1.3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
10.1.4. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
10.1.5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
10.1.6. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
10.1.7. the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
10.1.8. a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
10.1.9. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
10.1.10. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.1.3 to clause 10.1.9 (inclusive); or
10.1.11. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
10.2. Without affecting any other right or remedy available to it, the Supplier may terminate these terms and conditions with immediate effect by giving written notice to the Customer if:
10.2.1. the Customer fails to pay any amount due under these terms and conditions on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
10.2.2. there is a change of Control of the Customer.
- Consequences of termination
11.1. On termination or expiry of these terms and conditions:
11.1.1. the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
11.1.2. the Supplier shall, on request, cease use of any of the Customer Materials; and
11.1.3. the following clauses shall continue in force: clause 1 (Interpretation), clause 6 (Intellectual property rights), clause 8 (Limitation of liability) and clause 11 (Consequences of termination).
11.2. Termination or expiry of these terms and conditions 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 agreement which existed at or before the date of termination or expiry.
- Force Majeure
12.1. “Force Majeure Event” means any circumstance not within either party’s reasonable control including, without limitation:
12.1.1. acts of God, flood, drought, earthquake or other natural disaster;
12.1.2. epidemic or pandemic;
12.1.3. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
12.1.4. nuclear, chemical or biological contamination or sonic boom;
12.1.5. any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
12.1.6. collapse of buildings, fire, explosion or accident;
12.1.7. non-performance by suppliers or subcontractors; and
12.1.8. interruption or failure of utility, server, hosting or network service.
12.2. Provided it has complied with clause 12.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under these terms and conditions by a Force Majeure Event (“Affected Party”), the Affected Party shall not be in breach of these terms and conditions or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
12.3. The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
12.4. The Affected Party shall:
12.4.1. as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
12.4.2. use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
12.5. If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than six weeks, the party not affected by the Force Majeure Event may terminate these terms and conditions by giving one months’ written notice to the Affected Party.
12.6. If the Force Majeure Event prevails for a continuous period of more than three months, either party may terminate these terms and conditions by giving one months’ written notice to the other party. On the expiry of this notice period, these terms and conditions will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of these terms and conditions occurring prior to such termination.
- 13. Entire agreement
13.1. These terms and conditions, together with the Agreement and the Mandatory Policies constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
13.2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these terms and conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these terms and conditions.
- Third party rights
No one other than a party to the Agreement, their successors and permitted assignees, shall have any right to enforce any of these terms and conditions.
15.1. Any notice given to a party under or in connection with these terms and conditions shall be in writing and shall be:
15.1.1. delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case);
15.1.2. sent by fax to its main fax number; or
15.1.3. sent by email to the addresses of the managers specified in the Agreement.
15.2. Any notice shall be deemed to have been received:
15.2.1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
15.2.2. if sent by pre-paid first-class post or other next Business Day delivery service, on the second Business Day after posting or at the time recorded by the delivery service.
15.2.3. if sent by fax or email, on the day of transmission, providing that the day of transmission is a Business Day and if not, then the next Business Day after the day of transmission.
15.3. This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.