Terms & Conditions V1

Interpretation

Definitions. In these Conditions, the following definitions apply

Document ID & Version Tracking

Document ID & Version No: Think Cloud -Terms & Conditions

Company

shall mean Think Cloud Ltd whose registered address is The Deep Business Centre, Tower Street Hull, HU1 4BG, Company Number 04822386 and its successors and assigns or any person acting on behalf of and with the authority of the company.

Conditions

means these terms and conditions as amended from time to time;

Client

shall mean the person or entity described as such on the invoices, client information, quotation, Service(s) Agreement, Managed Service(s) Agreement or any other forms to which these terms and conditions apply, and shall include any person acting on behalf of and with the authority of such person or entity.

Guarantor

means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.

Goods

shall mean Goods supplied by the Company to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, Service Agreement or any other forms as provided by the Company to the Client.

Intellectual Property Rights

patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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

Service Agreement

the Managed Service Agreement & as attached to these Conditions;(See Conditions a-e)

Managed Services Agreement

the Managed Service(s) Agreement & or Service(s) Agreement as attached to these & as attached to these Conditions; (See Conditions a-e)

Conditions

a) Order

the order by the Client for the supply of Goods and/or Services and setting out their requirements to the Company

b) Order Form

the Company's standard Order Form for Goods and/or Services

c) Price

shall mean the cost of the Goods as agreed between the Company and the Client subject to clause 8 of this contract.

d) Services

shall mean Services performed by the Company for the Client (and where the context so permits shall include any supply of Software as hereinafter defined), as described on the invoices, quotation, Service(s) Agreement, Managed Service(s) Agreement or any other forms as provided by the Company to the Client and includes any advice or recommendations. If the Services are performed in relation to the Company’s Software, licensed under a SLSA, this agreement and the SLSA shall be considered separate and distinct agreements between the parties. Incl

e) Software

shall mean all Software products supplied by the Company to the Client (and where the context so permits shall include any supply of Services as defined above), which may be licensed under a SLSA.

f) SLSA

shall mean the Company’s (or a third party’s) Software License and Support Agreement.

Basis of Contract

2.1 The Order constitutes an offer by the Client to purchase Goods and/or Services in accordance with these Conditions.

2.2 The Order shall only be deemed to be accepted when the Company issues written acceptance of the Order at which point and on which date the Contract shall come into existence (“Commencement Date”).

2.3 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in the Contract.

2.4 Any samples, drawings, descriptive matter or advertising issued by the Company and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.

2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.6 Any quotation given by the Company shall not constitute an offer, and is only valid for a period of 7 days from its date of issue.

2.7 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.

Delivery of Goods

3.1 The Company shall ensure that:

(a) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Client and Company reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by installments, the outstanding balance of Goods remaining to be delivered; and

(b) if the Company requires the Client to return any packaging material to the Company, that fact is clearly stated on the delivery note. The Client shall make any such packaging materials available for collection at such times as the Company shall reasonably request. Returns of packaging materials shall be at the Company’s expense.

3.2 At the Company’s sole discretion delivery of the Goods shall take place when:

(a) the Client takes possession of the Goods at the Company’s address; or

(b) the Client takes possession of the Goods at the Client’s address or other address nominated by the Client (in the event that the Goods are delivered by the Company or the Company’s nominated carrier); or

(c) the Client’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Client’s agent; or

(d) the Client receives electronic delivery where software is supplied.

3.3 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Company shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Client’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

3.4 If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Client in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event the Client’s failure to provide the Company with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods. The Client will not be entitled to repudiate the contract for failure of delivery of the Goods or supply of the Services at the specified time.

3.5 If the Client fails to accept or take delivery of the Goods within 5 Business Days of the Company notifying the Client that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Company’s failure to comply with its obligations under the Contract in respect of the Goods:

(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the 5th Business Day following the day on which the Company notified the Client that the Goods were ready; and

(b) the Company shall store the Goods until delivery takes place, and charge the Client for all related costs and expenses (including insurance).

3.6 If 5 Business Days after the Company notified the Client that the Goods were ready for delivery the Client has not taken or accepted delivery of them, the Company may resell or otherwise dispose of part or all of the Goods.

3.7 The Company may deliver the Goods by installments, which shall be invoiced and paid for separately. Each installment shall constitute a separate contract. Any delay in delivery or defect in an installment shall not entitle the Client to cancel any other installment.

Quality of Goods

4.1 The Company warrants that on delivery, and for a period of 30 days from the date of delivery (“warranty period”), the Goods shall:

(a) conform with their description;

(b) be free from material defects in design, material and workmanship;

(d) be fit for any purpose held out by the Company.

4.2 The Client shall inspect the Goods on delivery and shall within three days notify the Company of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Company an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Company has agreed in writing that the Client is entitled to reject, the Company’s liability is limited to either (at the Company’s discretion) replacing the Goods or repairing the Goods.

4.3 No Goods shall be accepted for return except in accordance with clause 4.1 and 4.2 above.

4.4 Subject to clause 4.5, if:

(a) the Client gives notice in writing during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 4.1;

(b) the Company is given a reasonable opportunity of examining such Goods; and

(c) the Client (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Client’s cost,

(d) the Company shall, at its absolute discretion, repair or replace the defective Goods, or refund the price of the defective Goods in full.

4.5 The Company shall not be liable for the Goods’ failure to comply with the warranty in clause 4.1 if:

(a) the Client makes any further use of such Goods after giving a notice in accordance with clause 4.2;

(b) the defect arises because the Client failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;

(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;

(e) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

4.6 Except as provided in this clause 4, the Company shall have no liability to the Client in respect of the Goods’ failure to comply with the warranty set out in clause 4.1.

4.7 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Company under clause 4.2.

4.8 For Goods not manufactured by the Company, the warranty shall be the current warranty provided by the manufacturer of the Goods. Whilst the Company shall honour such warranty the Company shall not be bound by nor responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.

4.9 In the case of second hand Goods, the Client acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by the Company as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Company shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.

Title & Risk

5.1 The risk in the Goods shall pass to the Client on completion of delivery.

5.2 Title to the Goods shall not pass to the Client the Company receives payment in full (in cash or cleared funds) for the Goods and any other goods/services that the Company has supplied to the Client in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums;

5.3 Until title to the Goods has passed to the Client, the Client shall:

(a) store the Goods separately from all other goods held by the Client so that they remain readily identifiable as the Company’s property;

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Company’s behalf from the date of delivery;

(d) notify the Company immediately if it becomes subject to any of the events listed in clause

(e) give the Company such information relating to the Goods as the Company may require from time to time.

5.4 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Company is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.

5.5 If before title to the Goods passes to the Client the Client becomes subject to any of the events listed in clause 13.2(b) to clause 13.2(m), then, without limiting any other right or remedy the Company may have:

(a) the Client’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and

(b) the Company may at any time:

(i) require the Client to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and

(ii) if the Client fails to do so promptly, enter any premises of the Client or of any third party where the Goods are stored in order to recover them.

5.6 It is further agreed that until such time as ownership of the Goods shall pass from the Company to the Client the Company may give notice in writing to the Client to return the Goods or any of them to the Company.

5.7 Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and the Company shall have the right:

(a) of stopping the Goods in transit whether or not delivery has been made; and

(b) if the Client fails to return the Goods to the Company then the Company or the Company’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and

(c) the Client is only a bailee of the Goods and until such time as the Company has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for the Company; and

(d) the Client shall not deal with the money of the Company in any way which may be adverse to the Company; and

(e) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Company; and

(f) the Company can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and

(g) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that the Company will be the owner of the end products.

Supply Of Service

6.1 The Company shall provide the Services to the Client in accordance with the Order Form or the Service Agreement and or Managed Services Agreement in all material respects.

6.2 The Company shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order Form or Schedule 1, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

6.3 The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Client in any such event.

6.4 The Company warrants to the Client that the Services will be provided using reasonable care and skill.

Client's Obligations

7.1 The Client shall:

(a) ensure that the terms of the Order are complete and accurate;

(b) co-operate with the Company in all matters relating to the Services;

(c) provide the Company, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities as reasonably required by the Company to provide the Services;

(d) provide the Company with all technical data, computer facilities, programs (including source code and interface specifications), files, documentation, test data, sample output, or other information and resources as the Company may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;

(e) prepare the Client’s premises for the supply of the Services;

(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

(g) keep and maintain all materials, equipment, documents and other property of the Company (“Company Materials”) at the Client’s premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company’s written instructions or authorisation; and

(h) will provide full-time personnel, as dedicated resources, to perform the Client’s duties and responsibilities contemplated under this agreement, including in relation to any Services supplied under these Conditions.

7.2 For the avoidance of doubt, any tasks that are not specifically assigned to the Company under the Service Agreement and or Managed Services Agreement or as set out in these Conditions, will remain the Client’s responsibility and will remain under the Client’s supervision, management and control, even if the Company advises or assists the Client in performing such tasks, including but not limited to the security and provision of back-upcopies of its data from any pc networks. Furthermore the Company is not responsible for the loss or corruption of the Client’s data.

7.3 If the Company’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (“Client Default”):

(a) the Company shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays the Company’s performance of any of its obligations;

(b) the Company shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause (h); and

(c) the Client shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Client Default.

Changes & Payments

8.1 The Price for Goods shall be the price set out on the Order Form or, if no price is quoted, the price set out in the Company’s published price list as at the date of delivery. The price of the Goods is exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be paid by the Client when it pays for the Goods.

8.2 The charges for Services shall be set out on the Order Form.

8.3 The Company reserves the right to:

(a) Request a non-refundable deposit;

(b) increase its fee rates for the charges for the Services, provided that such charges cannot be increased more than once in any 12 month period. The Company will give the Client written notice of any such increase 1 months before the proposed date of the increase. If such increase is not acceptable to the Client, it shall notify the Company in writing within 5 days of the date of the Company’s notice and the Company shall have the right without limiting its other rights or remedies to terminate the Contract by giving 1 weeks written notice to the Client; and

(c) increase the price of the Goods, by giving notice to the Client at any time before delivery, to reflect any increase in the cost of the Goods to the Company that is due to:

(i) any factor beyond the control of the Company (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(ii) any request by the Client to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or

(iii) any delay caused by any instructions of the Client in respect of the Goods or failure of the Client to give the Company adequate or accurate information or instructions in respect of the Goods.

8.4 In the event that the Client requires additional Services at any point during the Agreement, the Company will inform the Client of the increased fee. The Client reserves the right to increase the fee to be paid in relation to an increased demand for the Services and this is a separate obligation to the that set out at 8.3 (b).

8.5 In respect of Goods, the Company shall invoice the Client on or at any time after completion of delivery. In respect of Services, the Company shall invoice the Client on monthly in arrears.

8.6 The Client shall pay each invoice submitted by the Company:

(a) within 7 days of the date of the invoice; and

(b) in full and in cleared funds to a bank account nominated in writing by the Company or cheque, or by credit card (plus a surcharge of 2.5% of the Price), or by debit card, and time for payment shall be of the essence of the Contract.

8.7 In the event that any payment is dishonoured for any reason the Client shall be liable for any consequential charges.

8.8 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Client, the Client shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.

8.9 If the Client fails to make any payment due to the Company under the Contract by the due date for payment, then the Client shall:

(a) pay interest on the overdue amount at the rate of 4% per annum above Barclays base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.

(b) be liable for the Company’s legal fees in relation to the recovery of the overdue amount;

8.10 The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Company to the Client.

Intellectual Property Rights

9.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Company.

9.2 The Client acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Client’s use of any such Intellectual Property Rights is conditional on the Company obtaining a written licence from the relevant licensor on such terms as will entitle the Company to license such rights to the Client.

9.3 All Company Materials are the exclusive property of the Company.

Confidentiality

10.1 A party (“receiving party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (“disclosing party”), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 10 shall survive termination of the Contract.

Data Protection Act 1998

11.1 The Client authorises the Company to:

(a) collect, retain and use any information about the Client, for the purpose of assessing the Client’s creditworthiness or marketing products and services to the Client; and

(b) to disclose information about the Client, whether collected by the Company from the Client directly or obtained by the Company from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or of listing a default by the Client on publicly accessible credit reporting databases.

11.2 The Company may also use information about the Client to monitor and analyse its business. In this connection the Client authorises the Company to disclose personal information to agents or third parties engaged by the Company.

11.3 The Client consents to the transfer of information outside of the European Economic Area for the purposes listed above.

11.4 Where the Client is an individual the authorities under (clause 15.1) are authorities or consents for the purposes of the Data Protection Act 1998.

11.5 The Client shall have the right to request the Company for a copy of the information about the Client retained by the Company and the right to request the Company to correct any incorrect information about the Client held by the Company.

Limitation of Liability

12.1 In no event shall the Company be held liable for indirect, special, incidental or consequential damages arising out of service provided hereunder, including but not limited to loss of profits or revenue, loss of use of equipment, lost data, costs of substitute equipment, or other costs.

12.2 Nothing in this clause shall limit or exclude any liability for fraud or negligence of the Company.

12.3 The Company’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to 1 months fee for the Services.

12.4 This clause 12 shall survive termination of the Contract.

Termination

13.1 Unless specified elsewhere, the Contract will continue for the term specified (“Initial Term”) and cannot be terminated early except in accordance with these Conditions. After the Initial Term has expired the Client may terminate the Contract by giving 90 days written notice to the Company.

13.2 Where the Contract is indicated on the Order Form to be a monthly contract, the Contract will be for an initial term of three months after which either party may terminate the Contract by giving 60 days written notice to the other party.

13.3 Without limiting its other rights or remedies, the Company may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Client and the Company if the Client fails to pay any amount due under this Contract on the due date for payment, the Client becomes subject to any of the events listed in clause 13.2(b) to clause 13.2(m), or the Company reasonably believes that the Client is about to become subject to any of them:

(a) the Client commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 5 days after receipt of notice in writing to do so;

(b) the Client 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 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

(c) the Client 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 its creditors;

(d) 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 the Client (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Client with one or more other companies or the solvent reconstruction of the Client;

(e) the Client (being an individual) is the subject of a bankruptcy petition or order;

(f) a creditor or encumbrancer of the Client 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 its assets and such attachment or process is not discharged within 14 days;

(g) 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 Client (being a company);

(h) the holder of a qualifying charge over the assets of the Client (being a company) has become entitled to appoint or has appointed an administrative receiver;

(i) a person becomes entitled to appoint a receiver over the assets of the Client or a receiver is appointed over the assets of the Client;

(j) any event occurs, or proceeding is taken, with respect to the Client in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2(b) to clause 13.2(i) (inclusive);

(k) the Client suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;

(l) the Client’s financial position deteriorates to such an extent that in the Company’s opinion the Client’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or

(m) the Client (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

13.4 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment.

13.5 On termination of the Contract for any reason:

(a) the Client shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Company shall submit an invoice, which shall be payable by the Client immediately on receipt;

(b) the Client shall return all of the Company Materials and any Goods which have not been fully paid for. If the Client fails to do so, then the Company may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;

(c) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and

(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.

13.6 Upon termination of the Contract, where Services are being provided the Company, may, at its sole discretion depending upon the reason for termination, assist the Client in the orderly termination of Services, including timely transfer of the Services to another designated provider. The Client agrees to pay the Company’s costs of rendering such assistance

Force Majeure

14.1 The Company shall not be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from any event beyond its reasonable control (“Force Majeure Event”). In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed or at the discretion of the Company, the Company shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 5 Business Days the Company shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.

Non Solicitation

15.1 The Client acknowledges and agrees that the employees and consultants of the Company, who perform the Services hereunder, are a valuable asset to the Company and are difficult and costly to replace. Accordingly, the Client hereby agrees that during the term of this agreement, and for a period of twelve (12) months thereafter, if the Client directly or indirectly hires, an employee of the Company (including any former employee or any current employee hired after the start of this agreement), or an independent contractor or consultant, then the Client shall pay the Company 100% of the current annual salary (plus VAT) of the employee, contractor or consultant.

General

16.1 Assignment and other dealings.

(a) The Company may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.

(b) The Client shall not, without the prior written consent of the Company, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

16.2 Notices.

(a) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail.

(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by by fax or e-mail, one Business Day after transmission.

(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action

16.3 Severance.

(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

(b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

16.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

16.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

16.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.

16.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Company.

16.8 Governing law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

16.9 Jurisdiction Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).