UK Business Advertiser (Facilities Management Online Ltd)

Terms & Conditions

• 1. Background
  • The Contractor agrees to provide the Client with Email marketing services.
• 2. Definitions and interpretation
  • 2.1 The following terms shall have the following meanings for the purposes of this agreement:
    • 2.1.1 Facilities Management Online Ltd means the Facilities Management Online Ltd (Trading as UK Business Advertiser).
    • 2.1.2 ‘Conditions’ means the provisions contained in Clauses 4 to 21 which shall be incorporated into this Agreement in their entirety.
    • 2.1.4 ‘Expiry Date’ means the last date all of the following have occurred:
      • 2.1.4.1 The Services have been provided; and
      • 2.1.4.2 The Client has paid the Contractor all the Payments under the terms of this Agreement and the funds have cleared.
    • 2.1.5 ‘Term’ means the period beginning with the Commencement Date and ending with the Expiry Date or termination.
    • 2.1.6 ‘Intellectual Property Rights’ means the intellectual property, copyright, patents, trademarks, service marks, design right, format right, look and feel, know how, confidential information, moral rights, rights of privacy or publicity, domain names and any other intellectual or industrial property rights (whether registered, registerable or not and including any applications to register the same) wherever in the world enforceable, including any renewals of registrations of the same.
    • 2.1.7 ‘Notice’ means complying with the terms of Clause 14.
    • 2.1.8 ‘Payments’ means the relevant amount listed in Schedule 1 exclusive of Value Added Tax. The precise Payment will vary according to the level of Services specified in Schedule 1 which the Client requests.
    • 2.1.9 ‘Services’ means the email marketing services specified in Clause 4.1.
    • 2.1.10 ‘Additional Services’ means any services provided by the Contractor to the Client specified in Clause 4.2.
    • 2.1.11 ‘Additional Charges’ means the fees which the Client shall pay the Contractor for the Additional Services and which are not specified in Schedule 1. Additional Charges shall be agreed in writing between the Contractor and Client prior to the Additional Services being provided.
    • 2.1.12 ‘Content’ means the content of and any material of whatever nature contained in (but without limitation) any brochure, catalogue, email, email attachment, product description or all other content written, obtained, sent or forwarded by or on behalf of the Client (including any Client Marks referred to in Clause 2.1.20) in connection with the Services or Additional Services.
    • 2.1.13 ‘Link’ means hypertext link which is an element on a webpage that enables navigation between different parts of the webpage or between different websites using any HTML, XML or other recognised process.
    • 2.1.14 ‘Recipients’ means those recipients chosen from the Contractor’s database to receive emails. Recipients are selected by the Contractor who shall have complete authority to decide upon who shall become a Recipient.
    • 2.1.15 ‘Working Day’ means 9am to 5pm Monday to Friday on any given week but excluding public holidays in England and Wales.
    • 2.1.16 ‘Contractor’s Website’ either means www.ukbusinessadvertiser.com or www.fmonline.co.uk
    • 2.1.17 ‘HTML’ means Hypertext Mark up Language and is the language used to create documents on the world wide web.
    • 2.1.18 ‘Order’ means the order lodged by the Client with the Contractor with an order form which is signed and dated. The order form shall also specify the level of Services required by the Client.
    • 2.1.19 ‘Confidential Information’ means information of a confidential nature belonging to either party including but not limited to trade secrets, business dealings, transactions or affairs of either the Contractor or Client which may come to the notice of either party during the Agreement and any information relating to the technologies and products being used to develop the Services.
    • 2.1.20 ‘Client Marks’ means and trademark or logo of the Client.
    • 2.1.21 ‘Order Form’ means the form with which the Client will use to request the provision of Services. The Order Form may be in any format but must include the following information:
      • 2.1.21.1 The Client’s name and name of contact in the event that the Client is a registered company;
        • 2.1.21.2 Date of the request; and
        • 2.1.21.3 Description of the Services requested by the Client which is sufficiently detailed for the Principal to identify the desired option from the range of Services provided by the Principal.
    • 2.1.22 ‘Design Brief’ means a plan and outline of the proposed Services sufficiently detailed for the Contractor to design and create the emails.
    • 2.1.23 ‘Completion Notice’ means a notice sent by the Contractor to the Client in accordance with Clause 11.3 which notifies the Client that the emails are ready for the Client’s inspection and approval.
    • 2.1.24 ‘Acceptance Date’ is the first day the Client is deemed to have approved the emails and shall occur in the following events:
      • 2.1.24.1 The date upon which the Client notified the Contractor of its approval of the emails;
        • 2.1.24.2 The next Working Day after expiry of the opportunity of the Client to approve or reject the emails pursuant to Clause 11.5; or
        • 2.1.24.3 The date upon which the Client notifies the Contractor of its approval of the Product following negotiations regarding the emails pursuant to Clauses 11.8.1 and 11.8.2.
        • 2.1.24.4 The date upon which the Contractor notifies the Client of its refusal to amend the emails pursuant to Clause 11.8.5.
  • 2.2 Headings contained in this Agreement are for reference purposes only and should not be incorporated into this Agreement and shall not be deemed to be any indication of the meaning of the clauses to which they relate.
  • 2.3 References to numbered clauses are references to the relevant clause in this Agreement.
  • 2.4 Words importing singular number include the plural and vice versa.
• 3. Appointment
  • The Client appoints the Contractor to provide the Services in accordance with this Agreement.

Conditions

• 4. The Contractor’s obligations
  • 4.1 Services to be provided by the Contractor
    • 4.1.1 The Contractor shall design and create Emails in accordance with a Design Brief on behalf of the Client for the purpose of sending to Recipients selected from the Contractor’s database.
    • 4.1.2 The Contractor shall use all reasonable care and skill in providing the Services and shall make all reasonable efforts to perform the Services within the agreed timescale. For the purposes of this Agreement time is not of the essence.
    • 4.1.3 The Contractor shall send an email bulletin to the minimum number of Recipients specified in the Order.
    • 4.1.4 The Contractor does not guarantee or undertake any level of response or uptake following the provision of the Services. The Client does not enter this Agreement on the basis of any representation made by the Contractor or any agent.
  • 4.2 Additional Services
    • 4.2.1 The Contractor may from time to time provide the Client with Additional Services which will be agreed in writing by the Contractor and the Client.
    • 4.2.2 The agreement for the Additional Services shall specify the exact nature of the services to be provided.
    • 4.2.3 The agreement for the Additional Services shall also specify precisely the Additional Charges which the Client agrees to pay the Contractor in respect of the Additional Services.
  • 4.3 Intellectual Property Rights
    • 4.3.1 Should the Contractor require any information, software, connectivity, configuration and data from the Client or any third party acting on the Client’s behalf to provide the Services or Additional Services, all related Intellectual Property Rights shall vest in the owner of such Intellectual Property Rights.
    • 4.3.2 The Client grants the Contractor licence which is free of any royalty fee to use the Client’s Intellectual Property Rights which are required by the Contractor to provide the Services or Additional Services.
    • 4.3.3 The Client permits the Contractor any Client Mark for the purpose of providing Services or Additional Services.
    • 4.3.4 The Client agrees that the Contractor is the legal and beneficial owner of all Intellectual Property Rights in the Contractor’s database, in all email text and attachments, logos, trade names of the Contractor and all software connected to providing the Services.
    • 4.3.5 Upon the Services being provided and upon the Contractor being in funds of the full amount according to Schedule 1, all Intellectual Property Rights subsisting in the Emails shall assign to the Client.
    • 4.3.6 Upon the Client making a request in writing, the Contractor sign or execute a legal assignment to give effect to Clause 4.3.5.
    • 4.3.7 The Client shall be liable for all legal, administrative or third party costs arising from anything done pursuant to Clause 4.3.6.
    • 4.3.8 The Client shall not either alone or along with any other party challenge the ownership of any Intellectual Property Rights related to the Contractor, Services or Additional Services.
    • 4.3.9 Without limiting the liability of the Client in respect of any Content, the Contractor shall have the authority to remove, alter or amend the Content and any related material.
    • 4.3.10 The Contractor shall incur no liability whatsoever for anything done under Clause 4.3.6.
    • 4.3.11 The Contractor is allowed to include a Link to the Contractor’s Website on all email bulletins and any part of the Services.
  • 4.4 Warranties
    • 4.4.1 The Client and Contractor warrants their powers to enter into this Agreement and has obtained all necessary approvals to do so.
    • 4.4.2 This Agreement contains all the warranties and representations relating to the Services provided by the Contractor. All warranties and terms not included in this Agreement or implied by statute, custom, trade or rule of law are excluded.
    • 4.4.3 Unless stated otherwise in this Agreement, the Contractor does not give any warranties regarding third party software or in relation to any equipment or hardware that may be used in providing the Services or that may be used by the Client in relation to the Services.
    • 4.4.4 The Client agrees not to provide the Contractor with any material which:
      • 4.4.4.1 Is in breach of any copyright, logo, trademark, Intellectual Property Right, code, regulation or legislation including but not limited to codes, regulations or legislation which protect minors.
      • 4.4.4.2 Is obscene, defamatory, abusive, threatening, harassing, pornographic, racially or morally objectionable.
      • 4.4.4.3 Encourages the use of any illegal substance.
      • 4.4.4.4 Is deemed offensive or inappropriate by the Contractor.
      • 4.4.4.5 Contains any computer virus, Trojan horse, worm or other code or files that could damage or harm or otherwise disrupt the operations of another computer or storage device or violate the security of any individual, group, company or organisation.
      • 4.4.4.6 Perform or promote any illegal activities, illegal contests or promotions, pyramid schemes or chain letters.
      • 4.4.4.7 Impersonate, use the name of (without express permission) or misrepresent any individual, group, company or organisation.
• 5. The Client’s obligations
  • 5.1 Unless otherwise stated in this Agreement, in consideration of the Services to be rendered by the Contractor under this Agreement the Client agrees to make Payments within 7 clear Working Days of receiving an invoice and shall do so without demand, deduction or set-off.
  • 5.2 In the event that Payments are not received within 7 clear Working Days the Client shall be liable for interest according the Clause 14.1.
• 6. Cancellation
  • The Client may cancel this Agreement within 5 clear Working Days from the Commencement Date. In such event the Contractor shall pay the Client any sum already received save for any reasonable expenses or fees occurred in this period by the Contractor.
• 7. Credit Check
  • The Contractor shall be permitted to conduct any appropriate credit check upon the Client and the Client shall co-operate fully with such checks. The Contractor has complete discretion to cancel this Agreement upon receiving the results of the credit checks or in the event that the Client fails to co-operate with the credit checks.
• 8. Deposit
  • 8.1 Upon placing an Order, the Client shall pay the Contractor a deposit of 50% of the total Payment.
  • 8.2 The deposit less any reasonable fees or expenses shall be refundable to the Client if the Contractor decides not to provide the Services, Additional Services or Product to the Client following receipt of the credit check outlined in Clause 7.
• 9. Confidentiality
  • 9.1 The Contractor and Client agree to use all reasonable endeavours not to divulge or release the other party’s Confidential Information to any of its employees or sub-contractors unless necessary for the provision of the Services. The Contractor and Client also agree to use all reasonable endeavours to prevent the disclosure or access of Confidential Information to any third party without the prior written consent of both the Client and Contractor.
  • 9.2 Clause 9.1 shall not apply to the whole or part of the information which is already in the public domain or in the other’s possession prior to the Term.
  • 9.3 Clause 9.1 shall not apply when either the Contractor or Client is required to disclose Confidential Information because of a statutory or regulatory requirement having the force of law or by reason of a court order in a competent jurisdiction.
  • 9.4 Clause 9 of this Agreement shall be operative and binding on the Client and Contractor for a period of five years immediately following the Expiry Date.
• 10. Indemnities, insurance and limit of liability
  • 10.1 The Contractor shall not in any way be held liable for any actions, proceedings, claims, demands, damages, costs, expenses and any other liability whatsoever and however arising out of the Contractor’s use of or publication of any Content or Intellectual Property Rights even in the event that the Content or Intellectual Property Rights was subsequently removed, altered or amended by the Contractor.
  • 10.2 If in the Client’s view the Contractor fails to properly adhere to any of its duties under this Agreement, the Client shall inform the Contractor in writing of the issue and any dispute shall follow the procedure set out in Clause 21.
  • 10.3 If after investigation the Contractor is of the opinion that it has failed to fulfil its duties under this Agreement it shall have a reasonable time to rectify the problem and shall do so free of charge where the failure to fulfil its duties are solely and exclusively the fault of the Contractor.
  • 10.4 In the event that any actions of the Client causes the Contractor a delay in providing the Services the Client shall allow the Contractor a reasonable and proportional extension of time to fulfil its obligations under this Agreement and shall indemnify the Contractor for all additional costs attributable to this delay.
  • 10.5 The Contractor shall not have any liability to the Client for any claim whether arising from negligence, breach of contract or otherwise to the extent that the same is or can be described as a claim for or arising from:
    • 10.5.1 Loss of profits;
    • 10.5.2 Loss of anticipated savings or anticipated profits;
    • 10.5.3 Loss of business opportunity;
    • 10.5.4 Punitive damages;
    • 10.5.5 Loss of data belonging to or processed by the Client;
    • 10.5.6 Losses suffered by third parties; or
    • 10.5.7 Indirect, or special loss or damage.
  • 10.6 Clause 10.5 shall be effective notwithstanding the form of action, whether in contract, strict liability or tort (including negligence), and regardless of whether the Contractor had knowledge (constructive or actual) of the possibility of loss, injury or damage in question.
  • 10.7 The Client shall indemnify the Contractor and agrees to keep the Contractor indemnified in respect of any claims made against the Contractor by third parties for all related costs, damages, losses or expenses incurred by the Contractor as a result of the misuse of the Services or Additional Services, negligence or breach by the Client.
  • 10.8 The Contractor excludes any and all liability whatsoever for any representations (whether innocent, negligent or fraudulent) of any agent or representative of the Contractor which is not an express term of this Agreement.
  • 10.9 The liability of the Contractor for a breach or breaches of this Agreement shall be limited to an amount equal to 50% of the Payments paid by the Client to the Contractor in aggregate in the calendar year in which the breach or breaches occurred.
  • 10.10 Without prejudice to any term of this Agreement, the Contractor shall not be held liable in any way whatsoever for all actions, proceedings, claims, demands, damages, costs, expenses and other liability whatsoever and howsoever arising out of such actions, proceedings, claims, demands as a direct or indirect result of the Client or any party acting on the Client’s behalf placing or allowing to be placed any virus, trojan horse, worm or other code or files which corrupts any part of the computer systems of the Contractor.
  • 10.11 Save as when expressly provided by the terms of this Agreement, all representations, conditions and warranties whether express or implied (by statute or otherwise) are excluded to the maximum extent allowed by law. Without limitation, the Contractor excludes any representation, condition or warranty that the Services or Additional Services will be uninterrupted or free of errors.
• 11. Procedure for approval and Payment
  • 11.1 The Client shall send to the Contractor a signed Order Form and a Deposit on the Commencement Date.
  • 11.2 The Client shall send to the Contractor a signed Design Brief within 10 clear Working Days of the Commencement Date.
  • 11.3 Upon the emails being created and ready for distribution the Contractor shall:
    • 11.3.1 Send to the Client a Completion Notice; and
    • 11.3.2 Allow the emails to be viewed by the Client for the Client’s perusal and consideration prior to distribution.
  • 11.4 Upon viewing the emails and upon receiving the Completion Notice the Client shall notify the Contractor within 5 clear Working Days of its approval or rejection of the emails.
  • 11.5 If the Client fails to notify the Client within 5 clear Working Days of its approval or rejection of the emails, the emails will be deemed accepted and complying fully with the Design Brief on the next clear Working Day.
  • 11.6 If the Client notifies its rejection of the emails within 5 clear Working Days of the Completion Notice, the Client must specify in as much detail as is reasonably possible the defects or problems with the emails and the precise amendments it requires for the emails to be approved.
  • 11.7 Upon receiving the Client’s rejection of the emails, the Contractor shall have complete discretion to decide whether or not the rejection is warranted or reasonable and whether amendments to the emails are required to fulfil the Design Brief. This Clause is effective irrespective of any negotiations made between the parties and irrespective of anything done under Clause 11.8.1, 11.8.2, 11.8.3, 11.8.4, or 11.8.5 of this Agreement.
  • 11.8
    • 11.8.1 If following rejection of the emails by the Client and upon the Contractor agreeing that amendments are necessary the Contractor shall have a reasonable and proportionate time and in any event a minimum of 10 clear Working Days from the date of rejection to make the necessary amendments to the emails.
    • 11.8.2 If the Contractor decides to amend or alter the emails following a rejection referred to in Clause 11.5, the Contractor shall allow the amended emails to be viewed by the Client and shall send a new Completion Notice to the Client who shall then have 5 clear Working Days to approve or reject the emails. This procedure shall continue until the Contractor at its sole discretion notifies the Client that the emails are deemed to be accepted and no further amendments will be considered.
    • 11.8.3 Upon the Client viewing of the amended emails and upon receiving a new Completion Notice and upon the Contractor not receiving an approval or rejection of the emails in their amended form within 5 clear Working Days the emails shall be deemed accepted by the Client and complying fully with the Design Brief on the next clear Working Day.
    • 11.8.4 If the Contractor amends or alters the emails and provides the Client with amended emails and a new Completion Notice, the Client shall be prohibited from rejecting the emails for a reason which it was reasonable to have mentioned following receipt of the first Completion Notice and the inspection of the emails in their initial form.
    • 11.8.5 If following rejection of the emails and upon the Contractor being of the opinion that no amendments are necessary to fulfil the Design Brief the Contractor shall notify the Client in writing of its refusal to make any amendments.
  • 11.9 Unless otherwise stated in this Agreement the emails shall be deemed accepted by the Client on the Acceptance Date.
  • 11.10 The Client shall pay the Contractor an amount equal to 25% of the Payment within 5 clear Working Days from the Acceptance Date.
  • 11.11 Upon being in clear funds from the Payment specified in Clause 11.10, the Contractor shall distribute the emails to the selected Recipients on the next clear Working Day.
  • 11.12 The Client shall pay the Contractor the outstanding amount equal to 25% of the Payment within 15 clear Working Days from the Acceptance Date.
  • 11.13 If the Contractor does not receive the Payment specified in Clause 11.10 the Contractor shall not be obliged to provide the Services.
  • 11.14 All Payments and quotes shall be exclusive of VAT. The Contractor shall include a provision for VAT on all invoices sent to the Client.
  • 11.15 The Contractor shall accept all Payments and Deposits in the following methods:
    • 11.15.1 A cheque sent by first class recorded delivery post to the address of the Contractor; or
    • 11.15.2 Electronic Bank Transfer. The Client acknowledges that it bears the responsibility of ascertaining all the relevant information and account details necessary for an electronic bank transfer prior to the relevant dates of Payment.
    • 11.15.3 The Contractor reserves the right to request Payments and Deposits by direct debit payments as and when the Contractor deems appropriate.
• 12. Termination for breach
  • The following shall be considered fundamental breaches of this Agreement and as such the party not in breach may terminate this Agreement immediately and the rights and liabilities shall be determined in accordance with Clause 13:
    • 12.1 Failure on the part of the Client to provide the Contractor with Payments or Additional Charges punctually of all the sums due to the Contractor under the terms of this Agreement;
    • 12.2 Either party going into or becoming involved in any proceedings involving liquidation (either compulsory or voluntary liquidation), administration, administrative receivership, entering into a corporate voluntary arrangement for all or any of its assets (or the equivalent situations in other jurisdictions), ceasing trading or becoming generally unable to pay its debts within the meaning of Section 123 or Section 268 of the Insolvency Act 1986; or
    • 12.3 The doing or permitting of any act by which the Contractor’s Intellectual Property Rights may be prejudiced or put in jeopardy.
• 13. Termination Consequences
  • In the event of this Agreement being terminated whether by effluxion of time, Notice or otherwise:
    • 13.1 The Client shall pay to the Contractor:
      • 13.1.1 All arrears of Payments and Additional Charges and any other sums due under the terms of this Agreement; and
      • 13.1.2 All further sums which would but for the termination of this Agreement have fallen due at the end of the Term.
    • 13.2 Either party shall be entitled to exercise any one or more of the rights under the terms of this Agreement and the termination of this Agreement shall not affect or prejudice such rights and remedies.
    • 13.3 Upon termination of this Agreement pursuant to Clause 7 the Contractor shall not be obliged to provide the Services to the Client.
    • 13.4 Any right or remedy to which either party is or may become entitled under this Agreement or in consequence of the other’s conduct may be enforced from time to time separately or concurrently with any right or remedy given by this Agreement or now or afterwards provided for and arising by operation of law so that such rights and remedies are not exclusive of the other or others but are cumulative.
• 14. Miscellaneous
  • 14.1 Interest
    • 14.1.1 All sums due from either of the parties to the other which are not paid on the due date (without prejudice to the rights of the Contractor under this Agreement) shall bear interest from day to day at the annual rate of 4% over the daily base rate of Barclays Bank plc with a minimum of 8% per year.
    • 14.1.2 The Contractor notwithstanding Clause 14.1.1 also reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
  • 14.2 Receipt
    • The Receipt of money by either party shall not prevent either of them from questioning the correctness of any statement in respect of such money.
  • 14.3 Force majeure
    • The Contractor and Client shall be released from their respective obligations in the event of national emergency war prohibitive governmental regulation or if any other cause beyond the control of the parties or either of them renders the performance of this Agreement impossible whereupon all money due under this Agreement shall be paid immediately and in particular:
      • 14.3.1 The Client shall immediately pay to the Contractor all arrears of Payments, and
      • 14.3.2 The Contractor and Client shall be liable to pay to the other damages for any breach of this Agreement and all expenses and costs incurred by that party in enforcing its rights under this Agreement.
  • 14.4 Severance
    • If any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable or indications to that effect are received by either of the parties from any competent authority the remaining provisions of this Agreement shall remain in full force and effect unless the Contractor in the Contractor’s discretion decides to terminate this Agreement with 5 Working Days’ notice to the Client and the provisions of Clause 13 shall apply accordingly.
  • 14.5 Whole agreement
    • Each party acknowledges that this Agreement and the Conditions contain the whole Agreement between the parties and that it has not relied upon any oral or written representation made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it.
  • 14.6 Supersedes prior agreements
    • This Agreement supersedes any prior Agreement between the parties whether written or oral and any such prior agreements are cancelled at the Commencement Date but without prejudice to any rights which have already accrued to the parties.
  • 14.7 Change of address
    • The Contractor and Client shall give notice to the other of the change or acquisition of any address, email address, telephone telex or similar number at the earliest possible opportunity but in any event within 48 hours of such change or acquisition.
  • 14.8 Notices
    • 14.8.1 Each notice shall be addressed to the address of the party concerned set out in this Agreement or to such other addresses as that party shall have previously notified to the sender.
    • 14.8.2 All notices to be given under this Agreement shall be in writing and shall either be delivered personally, sent by recorded delivery first class post or email and shall be deemed duly served:
      • 14.8.2.1 In the case of a notice delivered personally, at the time of delivery;
      • 14.8.2.2 In the case of a notice sent by recorded delivery post, 2 clear Working Days after the date of dispatch;
      • 14.8.2.2 In the case of a notice sent by email, immediately on transmission provided no error message has been received.
    • 14.8.3 Any notice delivered by email shall be sent to the following address:
      • (a) Contractor: info@fmonline.co.uk
    • 14.8.4 Any notice delivered by email shall be confirmed within 24 hours by first class mailed confirmation of a copy.
• 15. Proper law and jurisdiction
  • 15.1 This Agreement shall be governed by English law in every particular including formation and interpretation and shall be deemed to have been made in England.
  • 15.2 Any proceedings arising out of or in connection with this Agreement may be brought in any court of competent jurisdiction in England and Wales.
  • 15.3 The submission by the parties to such jurisdiction shall not limit the right of the Contractor to commence any proceedings arising out of this Agreement in any other jurisdiction it may consider appropriate.
  • 15.4 Any notice of proceedings or other notices in connection with or which would give effect to any such proceedings may without prejudice to any other method of service be served on any party in accordance with Clause 14.
  • 15.5 In the event that the Client is residue outside the United Kingdom its address for service in the United Kingdom shall be the address for such service nominated at the head of this Agreement and any time limits in any proceedings shall not be extended by virtue only of the foreign residence of the Client.
• 16. Rights cumulative
  • All rights granted to either of the parties shall be cumulative and no exercise by either of the parties of any right under this Agreement shall restrict or prejudice the exercise of any other right granted by this Agreement or otherwise available to it.
• 17. Survival of terms
  • No term of this Agreement shall survive expiry or termination of this Agreement unless expressly provided.
• 18. Waiver
  • The failure by either party to enforce at any time or for any period any one or more of the terms or Conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.
• 19. Assignment or sub-contracting
  • The Client shall not assign or sub-contract any of his rights or duties under this Agreement without the consent in writing of the Contractor. The Contractor may from time to time delegate or sub-contract any of his duties or obligations under this Agreement without the consent of the Client.
• 20. Third party rights
  • A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Agreement)
• 21. Arbitration
  • All disputes or differences which at any time arise between the parties whether during the Term or afterwards touching or concerning this Agreement or its construction or effect or the rights duties or liabilities of the parties under or by virtue of it or otherwise or any other matter in any way connected with or arising out of the subject matter of this Agreement shall follow the procedure stated below:
    • 21.1 Upon discovery of a dispute or difference the Contractor or Client shall notify the other party in writing detailing the problem. The accounting manager of the Contractor and Client shall then consult in good faith in an attempt to resolve the matter;
    • 21.2 If the accounting managers fail to resolve the matter within 5 clear Working Days the dispute shall be referred to the Client and Contractor’s managing director (or equivalent office holder); and
    • 21.3 Only in the event that the Client and Contractor’s managing directors fail to resolve the dispute within 10 clear Working Days shall either party be at liberty to commence litigation.

Website Services

Terms & Conditions

• 1. Background
  • The Contractor agrees to provide the Client with electronic marketing services.
• 2. Definitions and interpretation
  • 2.1 The following terms shall have the following meanings for the purposes of this agreement:
    • 2.1.1 Facilities Management Online Ltd means the Facilities Management Online Ltd (Trading as UK Business Advertiser).
    • 2.1.2 ‘Conditions’ means the provisions contained in Clauses 4 to 26 which shall be incorporated into this Agreement in their entirety.
    • 2.1.3 ‘Expiry Date’ means the last date that all the following events have occurred:
      • 2.1.3.1 The Services have been approved by the Client;
      • 2.1.3.2 The Client has paid the Contractor in full and the funds have cleared.
    • 2.1.4 ‘Term’ means the period beginning with the Commencement date and ending with the Expiry Date or termination.
    • 2.1.5 ‘Intellectual Property Rights’ means the intellectual property, copyright, patents, trademarks, service marks, design right, format right, look and feel, know how, confidential information, moral rights, rights of privacy or publicity, domain names and any other intellectual or industrial property rights (whether registered, registerable or not and including any applications to register the same) wherever in the world enforceable, including any renewals of registrations of the same.
    • 2.1.6 ‘Notice’ means a notice complying with the terms of Clause 19.8.
    • 2.1.7 ‘Payments’ means a fee to be decided in writing between both parties prior to the Commencement Date in consideration of the Services which shall be exclusive of VAT.
    • 2.1.8 ‘Services’ means the marketing services specified in Clause 4.
    • 2.1.9 ‘Additional Services’ means any services provided by the Contractor to the Client specified in Clause 5.
    • 2.1.10 ‘Additional Charges’ means the fees which the Client shall pay the Contractor for the Additional Services and which are not specified in Schedule 1. Additional Charges shall be agreed in writing between the Contractor and Client prior to the Additional Services being provided.
    • 2.1.11 ‘Content’ means the content of and any material of whatever nature contained in (but without limitation) in any brochure, catalogue, email, email attachment, product description or all other content written, obtained, sent or forwarded by or on behalf of the Client (including any Client Marks referred to in Claus 2.1.7) in connection with the Services or Additional Services.
    • 2.1.12 ‘Link’ means hypertext link which is an element on a webpage that enables navigation between different parts of the webpage or between different websites using any HTML, XML or other recognised process.
    • 2.1.13 ‘Working Day’ means 9am to 5pm Monday to Friday on any given week but excluding public holidays in England and Wales.
    • 2.1.14 ‘Contractor’s Website’ either means www.ukbusinessadvertiser.com or www.fmonline.co.uk
    • 2.1.15 ‘HTML’ means Hypertext Mark up Language and is the language used to create documents on the world wide web.
    • 2.1.16 ‘Confidential Information’ means information of a confidential nature belonging to either party including but not limited to trade secrets, business dealings, transactions or affairs of either the Contractor or Client which may come to the notice of either party during the Agreement and any information relating to the technologies and products being used to develop the Services.
    • 2.1.17 ‘Client Marks’ means any trademark or logo of the Client.
    • 2.1.18 ‘Design Brief’ means a plan and outline of the proposed Services sufficiently detailed for the Contractor to design and create the Product.
    • 2.1.19 ‘Product’ means the final product of the Services under this Agreement requested by the Client and produced by the Contractor according to the Design Brief.
    • 2.1.20 ‘Completion Notice’ means a notice sent by the Contractor to the Client according to Clause 13.4 which notifies the Client that the Product has been completed and is ready for the Client’s inspection and approval.
    • 2.1.21 ‘Acceptance Date’ is the first day the Client is deemed to have accepted the Product and shall occur in the following events:
      • 2.1.22.1 The date upon which the Client notified the Contractor of its approval of the Product;
      • 2.1.22.2 The next Working Day after expiry of the opportunity of the Client to approve or reject the Product pursuant to Clause 13.5; or
      • 2.1.22.3 The date upon which the Client notifies the Contractor of its approval of the Product following negotiations regarding the Product pursuant to Clause 13.8.2.
      • 2.1.22.4 The date upon which the Contractor notifies the Client of its refusal to amend the Product pursuant to Clauses 13.8, 13.8.2 and 13.8.5.
    • 2.1.23 ‘Order Form’ means the form with which the Client will use to request the provision of Services. The Order Form may be in any format but must include the following information:
      • 2.1.23.1 The Client’s name and name of contact in the event that the Client is a registered company;
      • 2.1.23.2 Date of the request; and
      • 2.1.23.3 Description of the Services requested by the Client which is sufficiently detailed for the Principal to identify the desired option from the range of Services provided by the Principal.
  • 2.2 Headings contained in this Agreement are for reference purposes only and should not be incorporated into this Agreement and shall not be deemed to be any indication of the meaning of the clauses to which they relate.
  • 2.3 References to numbered clauses are references to the relevant clause in this Agreement.
  • 2.4 Words importing singular number include the plural and vice versa.
  • 2.5 References to the Contractor shall include all employees of the Contractor and any affiliate company, holding company and subsidiary company as defined in the Companies Act 1985.
  • 2.6 References to the Client shall include all employees of the Client and any affiliate company, holding company and subsidiary company as defined by the Companies Act 1985.
• 3. Appointment
  • The Client appoints the Contractor to provide the Services in accordance with this Agreement. The relationship between the Contractor and the Client is that of independent contractor. The parties are not to act as agent for each other and neither party has the authority to enter (either expressly or by implication) any agreement on the other’s behalf unless the prior written consent of both parties has been obtained.

CONDITIONS

• 4. Services to be provided by the Contractor
  • 4.1 The Contractor shall provide the following Services in accordance with the Design Brief:
    • 4.1.1 Design, develop and deliver the Product applying the Content and according to the Design Brief;
    • 4.1.2 The Services referred to in Clause 4.1.1 shall include (but shall not be limited to) the design of a directory within the Contractor’s Website, website design and creation, audio-visual marketing materials, intranets, electronic and computer aided presentations;
  • 4.2 The Contractor shall use all reasonable care and skill in providing the Services and shall make all reasonable efforts to perform the Services within the agreed timescale. For the purposes of this Agreement time is not of the essence.
  • 4.3 The Contractor does not guarantee or undertake any level of response or uptake following the provision of the Services. The Client does not enter this Agreement on the basis of any representation made by the Contractor or any agent which is not expressly incorporated in this Agreement.
  • 4.4 The Contractor reserves the right to amend, change, correct or update the Services at any time and without notifying the Client in the following circumstances:
    • 4.4.1 The amendment, change, correction or update is a statutory or regulatory requirement; or
    • 4.4.2 The amendment, change, correction or update does not materially affect the nature or quality of the Services and the Contractor shall have complete discretion to determine whether the nature or quality of the Services is materially affected.
• 5. Additional Services
  • 5.1 The Contractor may from time to time provide the Client with Additional Services which will be agreed in writing by the Contractor and the Client.
  • 5.2 The agreement for the Additional Services shall specify the exact nature of the services to be provided.
  • 5.3 The agreement for the Additional Services shall also specify precisely the Additional Charges which the Client agrees to pay the Contractor in respect of the Additional Services.
• 6. Intellectual Property Rights
  • 6.1 All Intellectual Property Rights emanating from the Services, Additional Services and the Product shall be owned by the Contractor.
  • 6.2 Should the Contractor require any information, software, connectivity, configuration and data from the Client or any third party acting on the Client’s behalf to provide the Services or Additional Services, all related Intellectual Property Rights shall vest in the owner of such Intellectual Property Rights.
  • 6.3 The Contractor permits the Client to use all such Intellectual Property Rights referred to in Clause 6.1 to the extent that is needed to fulfil the purposes of the Products.
  • 6.4 The Client grants the Contractor licence which is free of any royalty fee to use the Client’s Intellectual Property Rights which are required by the Contractor to provide the Services or Additional Services.
  • 6.5 The Client permits the Contractor to use any Client Marks of the Client for the purpose of providing Services or Additional Services.
  • 6.6 The Client shall not either alone or along with any other party challenge the ownership of any Intellectual Property Rights related to the Contractor, Product, Services or Additional Services.
  • 6.7 Without limiting the liability of the Client in respect of any Content, the Contractor shall have the authority to remove, alter or amend the Content and any related material.
  • 6.8 The Contractor shall incur no liability whatsoever for anything done under Clause 6.7.
  • 6.9 The Contractor is permitted to use any Client Mark of the Client on any of the Contractor’s websites or on any of the Contractor’s promotional material or brochures.
  • 6.10 If the Client provides the Contractor with any trademark or logo of a third party then the Client agrees to accept full liability for doing so.
  • 6.11 The Client hereby agrees that the Contractor is the legal and beneficial owner of the copyright and all other Intellectual Property Rights, logos, trademarks and trade names of the Contractor and of all software used to provide the Services.
• 7. Warranties
  • 7.1 The Client and Contractor hereby warrant their powers to enter into this Agreement and has obtained all necessary approvals to do so.
  • 7.2 This Agreement contains all the warranties and representations relating to the Services provided by the Contractor. All warranties and terms not included in this Agreement or implied by statute, custom, trade or rule of law are excluded.
  • 7.3 The Contractor does not give any warranties regarding third party software or in relation to any equipment or hardware that may be used in providing the Services or that may be used by the Client in relation to the Services.
  • 7.4 The Client agrees not to provide the Contractor with any material which:
    • 7.4.1 Is in breach of any copyright, logo, trademark, Intellectual Property Right, code, regulation or legislation including but not limited to codes, regulations or legislation which protect minors;
    • 7.4.2 Is obscene, defamatory, abusive, threatening, harassing, pornographic, racially or morally objectionable;
    • 7.4.3 Encourages the use of any illegal substance;
    • 7.4.4 Is deemed offensive or inappropriate by the Contractor;
    • 7.4.5 Contains any computer virus, Trojan horse, worm or other code or files that could damage or harm or otherwise disrupt the operations of another computer or storage device or violate the security of any individual, group, company or organisation;
    • 7.4.6 Perform or promote any illegal activities, illegal contests or promotions, pyramid schemes or chain letters; or
    • 7.4.7 Impersonate, use the name of (without express permission) or misrepresent any individual, group, company or organisation.
  • 8. The Client’s obligations
    • 8.1 Unless expressly stated otherwise in this Agreement, in consideration of the Services to be provided by the Contractor, the Client agrees to make Payments within 7 clear Working Days of receiving an invoice and shall do so without demand, deduction or set-off.
    • 8.2 In the event that Payments are not received within 7 clear Working Days the Client shall be liable for interest pursuant to Clause 19.1.
    • 8.3 The Client shall have absolute responsibility for the Content in any Product.
    • 8.4 The Client shall use reasonable endeavours to:
      • 8.4.1 Co-operate in good faith with the Contractor and respond promptly to any enquiry made by the Contractor to facilitate the provision of the Services and delivery of the Product;
      • 8.4.2 Ensure that all passwords are kept confidential and secret and to take all appropriate measures to prevent passwords from becoming known to any unauthorised party, organisation or person. The Client shall also take all appropriate measures to prevent passwords from being used for unauthorised or fraudulent purposes; and
      • 8.4.3 Ensure that the Client’s agents or employees are made aware of any site regulations or rules of the Contractor’s premises and that those agents or employees adhere to the said regulations or rules.
  • 9. Contractor’s obligations
    • 9.1 The Contractor shall use reasonable endeavours to provide the Services and deliver the Product in a reasonable time and in accordance with the Design Brief.
    • 9.2 If the Contractor or any of its employees visit the premises of the Client, the Contractor shall use reasonable endeavours to ensure that relevant site rules and regulations are adhered to provided the Contractor is made aware of any said rules or regulations prior to the visit.
  • 10. Cancellation
    • The Client may cancel this Agreement within 5 clear Working Days from the Commencement Date. In such event the Contractor shall pay the Client any sum already received save for any reasonable expenses or fees occurred in this period by the Contractor.
  • 11. Credit Check
    • The Contractor shall be permitted to conduct any appropriate credit check upon the Client and the Client shall co-operate fully with such checks. The Contractor has complete discretion to cancel this Agreement upon receiving the results of the credit checks or in the event that the Client fails to co-operate fully with the credit checks. If the Contractor decides to cancel the Agreement under this Clause it shall notify the Client in writing within a reasonable time.
  • 12. Deposit
    • 12.1 Upon placing an Order, the Client shall pay the Contractor a deposit of 50% of the total Payment.
    • 12.2 The deposit less any reasonable fees or expenses shall be refundable to the Client if the Contractor decides not to provide the Services, Additional Services or Product to the Client following receipt of the credit check outlined in Clause 11.
  • 13. Procedure for Payment and Approval
    • 13.1 The Client and the Contractor shall determine the Payment prior to the Commencement Date and shall notify each other in writing of their acceptance of the Payment in consideration of the Services, Additional Services and Product to be provided.
    • 13.2 The Client shall send to the Contractor a Deposit and signed Order Form on the Commencement Date.
    • 13.3 The Client shall provide the Contractor with a signed Design Brief within 10 clear Working Days of the Commencement Date.
    • 13.4 Upon the Product being completed the Contractor shall:
      • 13.4.1 Send to the Client a Completion Notice; and
      • 13.4.2 Allow the Product to be viewed by the Client for the Client’s perusal and consideration.
    • 13.5 Upon seeing the Product and upon receiving the Completion Notice the Client shall notify the Contractor within 5 clear Working Days of its approval or rejection of the Product.
    • 13.6 If the Client fails to notify the Client within 5 clear Working Days of its approval or rejection of the Product, the Product will be deemed accepted and complying fully with the Design Brief on the next clear Working Day.
    • 13.7 If the Client notifies its rejection of the Product within 5 clear Working Days of the Completion Notice, the Client must specify in as much detail as is reasonably possible the defects or problems with the Product and the precise amendments it requires for the Product to be approved.
    • 13.8 Upon receiving the Client’s rejection of the Product, the Contractor shall have complete discretion to decide whether or not the rejection was warranted or reasonable and whether amendments to the Product are required to fulfil the Design Brief. This Clause is effective irrespective of any negotiations made between the parties and irrespective of anything done under Clause 13.8.1, 13.8.2, 13.8.3, 13.8.4, or 13.8.5 of this Agreement.
      • 13.8.1 If following rejection of the Product by the Client and upon the Contractor agreeing that amendments are necessary the Contractor shall have a reasonable and proportionate time and in any event a minimum of 10 clear Working Days from the date of rejection to make the necessary amendments to the Product.
      • 13.8.2 If the Contractor decides to amend or alter the Product following a rejection referred to in Clause 13.5, the Contractor shall provide the Product and a new Completion Notice to the Client who shall then have 5 clear Working Days to approve or reject the Product. This procedure shall continue until the Contractor at its sole discretion decides that the Product is deemed accepted by the Client and shall notify the Client in writing that no further amendments will be considered.
      • 13.8.3 Upon the Client receiving of the amended Product and a new Completion Notice and upon the Contractor not receiving an approval or rejection of the Product in its amended form within 5 clear Working Days the Product shall be deemed accepted by the Client and complying fully with the Design Brief on the next clear Working Day.
      • 13.8.4 If the Contractor amends or alters the Product and provides the Client with an amended product and a new Completion Notice, the Client shall be prohibited from rejecting the Product for a reason which it was reasonable to have mentioned following receipt of the first Completion Notice and the Product in its initial form.
      • 13.8.5 If following rejection of the Product and upon the Contractor being of the opinion that no amendments are necessary to fulfil the Design Brief the Contractor shall notify the Client in writing of its refusal to make any amendments.
    • 13.9 Unless otherwise stated in this Agreement the Product shall be deemed accepted by the Client on the Acceptance Date.
    • 13.10 The Client shall pay the Contractor an amount equal to 25% of the Payment within 5 clear Working Days of the Acceptance Date.
    • 13.11 Upon being in clear funds from the Payment specified in Clause 13.10 the Contractor shall do everything necessary to make the Product fully operational.
    • 13.12 The Client shall pay the Contractor an amount equal to 25% of the Payment within 15 clear Working Days of the Acceptance Date.
    • 13.13 If the Contractor does not receive the Payment referred to in Clause 13.10 the Contractor shall not be obliged to perform its obligations under Clause 13.11.
  • 14. Payment
    • 14.1 All Payments and Additional Charges and any other fees shall be made in full and shall be free from any deductions, rights of set-off, counterclaims or liens, save as where expressly provided by the terms of this Agreement.
    • 14.2 The Contractor shall receive any Payment or Additional Charge or any other fee in the following methods:
      • 14.2.1 A cheque sent by first class recorded delivery post to the Contractor’s registered address; and
      • 14.2.2 Electronic bank transfer.
    • 14.3 If the method chosen is Clause 14.2.2, the Client acknowledges that it bears the responsibility of ascertaining all the relevant information and account details necessary for an electronic bank transfer prior to the relevant dates of Payment.
    • 14.4 If the Contractor receives a Payment, Additional Charge or any other fee after the appropriate deadline set out in this Agreement or fails to receive in full all the amounts due under this Agreement the Contractor shall be permitted to suspend or terminate this Agreement at its sole discretion.
    • 14.5 All Payments and quotes shall be exclusive of VAT or any other taxes subject to UK tax legislation. The Contractor shall make provision for VAT on every invoice it sends to the Client.
  • 15. Confidentiality
    • 15.1 The Contractor and Client agree to use all reasonable endeavours not to divulge or release the other party’s Confidential Information to any of its employees or sub-contractors unless necessary for the provision of the Services or Additional Services. The Contractor and Client also agree to use all reasonable endeavours to prevent the disclosure or access of Confidential Information to any third party without the prior written consent of both the Client and Contractor.
    • 15.2 Clause 15.1 shall not apply to the whole or part of the information which is already in the public domain or in the other’s possession prior to the Term.
    • 15.3 Clause 15.1 shall not apply when either the Contractor or Client is required to disclose Confidential Information because of a statutory or regulatory requirement having the force of law or by reason of a court order in a competent jurisdiction.
    • 15.4 Clause 15 of this Agreement shall be operative and binding on the Client and Contractor for a period of five years immediately following the Expiry Date.
  • 16. Indemnities, insurance and limit of liability
    • 16.1 The Contractor shall not in any way be held liable for any actions, proceedings, claims, demands, damages, costs, expenses and any other liability whatsoever and however arising out of the Contractor’s use of or publication of the Product, Content, Links or Intellectual Property Rights even in the event that the Product, Content, Links or Intellectual Property Rights were subsequently removed, altered or amended by the Contractor.
    • 16.2 If the Client makes use of any Links connected to a website or pages in any way related to a third party:
      • 16.2.1 The Client shall bear full responsibility for doing so;
      • 16.2.2 The Client acknowledges that it does so at its sole discretion; and
      • 16.2.3 The Contractor hereby excludes all liability for content found in any website or page related in any way to a third party.
      • 16.2.4 The Contractor hereby excludes all liability for transactions of any nature related to such a website or page.
    • 16.3 If in the Client’s view the Contractor fails to properly adhere to any of its duties under this Agreement, the Client shall inform the Contractor in writing of the issue and any dispute shall follow the procedure set out in Clause 26.
    • 16.4 If after investigation the Contractor is of the opinion that it has failed to fulfil its duties under this Agreement it shall have a reasonable time to rectify the problem and shall do so free of charge where the failure to fulfil its duties are solely and exclusively the fault of the Contractor.
    • 16.5 In the event that any actions of the Client causes the Contractor a delay in providing the Services the Client shall allow the Contractor a reasonable and proportional extension of time to fulfil its obligations under this Agreement and shall indemnify the Contractor for all additional costs attributable to this delay.
    • 16.6 If the Contractor does not receive the Content from the Client within 10 clear Working Days from the Commencement Date, the Contractor has sole discretion to suspend or terminate this Agreement and the Client shall be liable to pay all outstanding Payments, Additional Charges or any other appropriate fee.
    • 16.7 The Contractor reserves the right to request additional or updated Content from the Client and shall do so in writing.
    • 16.8 If the Client does not provide the Content specifically requested under Clause 16.6 or 16.7 within 10 clear Working Days of receiving such a request, the Contractor may at its sole discretion reject or amend in any way it deems appropriate any previously agreed upon Content provided by the Client.
    • 16.9 The Contractor shall not have any liability to the Client for any claim whether arising from negligence, breach of contract or otherwise to the extent that the same is or can be described as a claim for or arising from:
      • 16.9.1 Loss of profits;
      • 16.9.2 Loss of anticipated savings or anticipated profits;
      • 16.9.3 Loss of business opportunity;
      • 16.9.4 Punitive damages;
      • 16.9.5 Loss of data belonging to or processed by the Client;
      • 16.9.6 Losses suffered by third parties; or
      • 16.9.7 Indirect, or special loss or damage.
    • 16.10 Clause 16.9 shall be effective notwithstanding the form of action, whether in contract, strict liability or tort (including negligence), and regardless of whether the Contractor had knowledge (constructive or actual) of the possibility of loss, injury or damage in question.
    • 16.11 The Client shall indemnify the Contractor and agrees to keep the Contractor indemnified in respect of any claims made against the Contractor by third parties for all related costs, damages, losses or expenses incurred by the Contractor as a result of the misuse of the Services, Additional Services, negligence or breach by the Client.
    • 16.12 The Contractor excludes any and all liability whatsoever for any representations (whether innocent, negligent or fraudulent) of any agent or representative of the Contractor which is not an express term of this Agreement.
    • 16.13 The liability of the Contractor for a breach of this Agreement shall be limited to an amount equal to 50% of the total Payments received by the Contractor in aggregate and in the calendar year in which the breach or breaches have occurred.
    • 16.14 Without prejudice to any term of this Agreement, the Contractor shall not be held liable in any way whatsoever for all actions, proceedings, claims, demands, damages, costs, expenses and other liability whatsoever and howsoever arising out of such actions, proceedings, claims, demands as a direct or indirect result of the Client or any party acting on the Client’s behalf placing or allowing to be placed any virus, trojan horse, worm or other code or files which corrupts any part of the computer systems of the Contractor.
    • 16.15 Save as when expressly provided by the terms of this Agreement, all representations, conditions and warranties whether express or implied (by statute or otherwise) are excluded to the maximum extent allowed by law. Without limitation, the Contractor excludes any representation, condition or warranty that the Services, Product or Additional Services will be uninterrupted or free of errors or shall generate a minimum level of response.
    • 16.16 The Contractor reserves the right to amend any and all of the procedures relating to this Agreement from time to time at its sole discretion but shall notify the Client no less than 5 clear Working Days before doing so.
  • 17. Termination for breach
    • 17.1 The following shall be considered fundamental breaches of this Agreement and as such the party not in breach may terminate this Agreement immediately and the rights and liabilities shall be determined in accordance with Clause 18:
      • 17.1.1 Failure on the part of the Client to provide the Contractor with Payments and Additional Charges punctually within the time limits specified by this Agreement of all the sums due to the Contractor under the terms of this Agreement;
      • 17.1.2 Either party going into or becoming involved in any proceedings involving liquidation (either compulsory or voluntary liquidation), administration, administrative receivership, entering into a corporate voluntary arrangement for all or any of its assets (or the equivalent situations in other jurisdictions), ceasing trading or becoming generally unable to pay its debts within the meaning of Section 123 or Section 268 of the Insolvency Act 1986; or
      • 17.1.3 The doing or permitting of any act by which the Contractor’s Intellectual Property Rights may be prejudiced or put in jeopardy.
  • 18. Termination consequences
    • 18.1 In the event of this Agreement being terminated whether by effluxion of time, Notice or otherwise:
      • 18.1.1 The Client shall pay to the Contractor:
      • 18.1.2 All arrears of Payments and Additional Charges and administrative costs or any other sums due under the terms of this Agreement;
      • 18.1.3 All further sums which would but for the termination of this Agreement have fallen due at the end of the Term; and
      • 18.1.4 All reasonable costs for any Additional Service which the Contractor has already undertaken where an Additional Charge has not been agreed in writing between the parties.
    • 18.2 Either party shall be entitled to exercise any one or more of the rights under the terms of this Agreement and the termination of this Agreement shall not affect or prejudice such rights and remedies.
    • 18.3 Upon termination of this Agreement pursuant to Clause 7 the Contractor shall not be obliged to provide the Services to the Client.
    • 18.4 Any right or remedy to which either party is or may become entitled under this Agreement or in consequence of the other’s conduct may be enforced from time to time separately or concurrently with any right or remedy given by this Agreement or now or afterwards provided for and arising by operation of law so that such rights and remedies are not exclusive of the other or others but are cumulative.
  • 19. Miscellaneous
    • 19.1 Interest
      • 19.1.1 All sums due from either of the parties to the other which are not paid on the due date (without prejudice to the rights of the Contractor under this Agreement) shall bear interest from day to day at the annual rate of 4% over the daily base rate of Barclays Bank plc with a minimum of 8% per year.
      • 19.1.2 The Contractor notwithstanding Clause 19.1.1 also reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
    • 19.2 Receipt
      • The Receipt of money by either party shall not prevent either of them from questioning the correctness of any statement in respect of such money.
    • 19.3 Force majeure
      • The Contractor and Client shall be released from their respective obligations in the event of national emergency war prohibitive governmental regulation or if any other cause beyond the control of the parties or either of them renders the performance of this Agreement impossible whereupon all money due under this Agreement shall be paid immediately and in particular:
        • 19.3.1 The Client shall immediately pay to the Contractor all arrears of Payments, and
        • 19.3.2 The Contractor and Client shall be liable to pay to the other damages for any breach of this Agreement and all expenses and costs incurred by that party in enforcing its rights under this Agreement.
    • 19.4 Severance
      • If any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable or indications to that effect are received by either of the parties from any competent authority the remaining provisions of this Agreement shall remain in full force and effect unless the Contractor in the Contractor’s discretion decides to terminate this Agreement with 5 Working Days’ notice to the Client and the provisions of Clause 18 shall apply accordingly.
    • 19.5 Whole agreement
      • Each party acknowledges that this Agreement and the Conditions contain the whole Agreement between the parties and that it has not relied upon any oral or written representation made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it.
    • 19.6 Supersedes prior agreements
      • This Agreement supersedes any prior Agreement between the parties whether written or oral and any such prior agreements are cancelled at the Commencement Date but without prejudice to any rights which have already accrued to the parties.
    • 19.7 Change of address
      • The Contractor and Client shall give notice to the other of the change or acquisition of any address, email address, telephone telex or similar number at the earliest possible opportunity but in any event within 48 hours of such change or acquisition.
    • 19.8 Notices
      • 19.8.1 Each notice shall be addressed to the address of the party concerned set out in this Agreement or to such other addresses as that party shall have previously notified to the sender.
      • 19.8.2 All notices to be given under this Agreement shall be in writing and shall either be delivered personally, sent by recorded delivery first class post or email and shall be deemed duly served:
        • 19.8.2.1 In the case of a notice delivered personally, at the time of delivery;
        • 19.8.2.2 In the case of a notice sent by recorded delivery post, 2 clear Working Days after the date of dispatch;
        • 19.8.2.3 In the case of a notice sent by email, immediately on transmission provided no error message has been received.
      • 19.3 Any notice delivered by email shall be sent to the following address:
        • (a) Contractor: info@fmonline.co.uk
      • 19.4 Any notice delivered by email shall be confirmed within 24 hours by first class mailed confirmation of a copy.
  • 20. Proper law and jurisdiction
    • 20.1 This Agreement shall be governed by English law in every particular including formation and interpretation and shall be deemed to have been made in England.
    • 20.2 Any proceedings arising out of or in connection with this Agreement may be brought in any court of competent jurisdiction in England and Wales.
    • 20.3 The submission by the parties to such jurisdiction shall not limit the right of the Contractor to commence any proceedings arising out of this Agreement in any other jurisdiction it may consider appropriate.
    • 20.4 In the event that the Client is residue outside the United Kingdom its address for service in the United Kingdom shall be the address for such service nominated at the head of this Agreement and any time limits in any proceedings shall not be extended by virtue only of the foreign residence of the Client.
  • 21. Rights cumulative
    • All rights granted to either of the parties shall be cumulative and no exercise by either of the parties of any right under this Agreement shall restrict or prejudice the exercise of any other right granted by this Agreement or otherwise available to it.
  • 22. Survival of terms
    • No term of this Agreement shall survive expiry or termination of this Agreement unless expressly provided.
  • 23. Waiver
    • The failure by either party to enforce at any time or for any period any one or more of the terms or Conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.
  • 24. Third party rights
    • A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Agreement)
  • 25. Assignment or sub-contracting
    • The Client shall not assign or sub-contract any of his rights or duties under this Agreement without the consent in writing of the Contractor. The Contractor may from time to time delegate or sub-contract any of his duties or obligations under this Agreement without the consent of the Client.
  • 26. Arbitration
    • 26.1 All disputes or differences which at any time arise between the parties whether during the Term or afterwards touching or concerning this Agreement or its construction or effect or the rights duties or liabilities of the parties under or by virtue of it or otherwise or any other matter in any way connected with or arising out of the subject matter of this Agreement shall follow the procedure stated below:
      • 26.1.1 Upon discovery of a dispute or difference the Contractor or Client shall notify the other party in writing detailing the problem. The accounting manager of the Contractor and Client shall then consult in good faith in an attempt to resolve the matter; and
      • 26.1.2 If the accounting managers fail to resolve the matter within 5 clear Working Days the dispute shall be referred to the Client and Contractor’s managing director (or equivalent office holder).
    • 26.2 Only in the event that the Client and Contractor’s managing directors fail to resolve the dispute within 10 clear Working Days shall either party be at liberty to commence litigation.

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