Terms and Conditions

1                APPLICATION OF THESE TERMS

• These Terms (as defined in clause 2) apply to all the Customer’s purchases from the Company and any variation to these Terms shall have no effect unless expressly agreed in writing by both parties. The definitions used in the Terms are set out in clause 2.
• The request by the Customer for the supply of Deliverables and/or Services shall be deemed to be an offer by the Customer subject to these Terms. The Company shall not be obliged to accept any such request but shall undertake an initial feasibility review. The initial feasibility review includes but is not limited to the Company requesting from a Customer the location of the Property to ensure that there are no flight restrictions in place and clarification of required services. Where the initial feasibility review is positive, the Company shall provide a quotation. Any quotation given by the Company shall not constitute an offer and is given on the basis that no contract will come into existence until the Proposal has been accepted pursuant to clause 3. A quotation is valid for a period of thirty (30) days only from its date.
• The Proposal shall be accepted when each party has executed the Proposal or (if earlier) the Company begins providing the Deliverables and/or Services on Customer's instruction.
• The Proposal that has been accepted pursuant to clause 3 shall, together with these Terms, form the Contract, which shall be a separate contract between the Company and the Customer and shall constitute the entire agreement in relation to its subject matter.
• These Terms are the only terms and conditions upon which the Company is prepared to deal with the Customer and they shall govern the Proposal to the exclusion of all other terms and conditions (whether in a purchaser order, acceptance note or otherwise).
• All terms and conditions (other than these Terms), warranties and other statements whatsoever that would otherwise be implied or imposed by statute, common law, trade custom or practice, a course of dealing or otherwise howsoever are excluded from the Contract to the fullest extent permitted by Applicable Law. The Customer acknowledges that it has not relied on, and shall have no remedy in respect of, any statement, representation, assurance, warranty or understanding made or given by or on behalf of the Company (whether innocently or negligently) which is not expressly set out in the Contract. The Customer shall not have any claim for innocent or negligent misrepresentation based upon any statement, representation, assurance or warranty in the Contract.

 

• DEFINITIONS AND INTERPRETATION

In these Terms the following words have the following meanings:

“Applicable Data Protection Laws”:

• EU GDPR and the UK GDPR; and
• any other Applicable Law with respect to any Customer Personal Data in respect of which Customer or any Customer Affiliate is a Controller (or its equivalent) under any other data protection laws.

“Applicable Law”: all laws, regulations, directives, statutes, subordinate legislation and common law that apply to the subject matter of the Contract.

“Charges”: has the meaning given to it in clause 10.1.

“Company”: The DragonFly Collective Limited T/A DragonFly Surveys, company registered in England and Wales under company number 15271514 and having a registered office address at c/o TN Accountancy, Lonsdale Gate, Lonsdale Gardens, Tunbridge Wells, Kent, England, TN1 1NU.

“Confidential Information”: means information that is classified as 'confidential', ‘secret’, or is clearly confidential. Confidential Information excludes any information that: (a) was rightfully in the receiving party’s possession prior to disclosure to it by the disclosing party; (b) is public knowledge (other than as a result of a breach of these Terms); (c) is received from a third party who is not under an obligation of confidentiality in relation to the information; or (d) is developed independently.

“controller”, “processor”, “data subject”, “personal data”, “personal data breach” and “processing”: shall have the meaning given to them in the GDPR.

“Contract”:  collectively the Proposal and these Terms.

“Customer”: the person(s), firm or company who has entered into these Terms and named as such in the Proposal.

“Customer Data” means any data recorded by the Company in the course of, or in relation to delivery of the Services and the Deliverables.

“Customer Personal Data”: any personal data which the Company processes in connection with these Terms, in the capacity of a processor on behalf of the Customer.

“Customer Property”: any fixtures, fittings, assets, items, equipment, documents, materials or other physical possessions at the Property, but excluding the Deliverables.

"Description of processing" means: in respect of the Services:

• Subject matter: provision of the Services.
• Duration: for the duration of the contract relating to the Services.
• Nature and purpose of processing: collecting, recording, replicating and storing the data including (a) organisation, adaptation or alteration of the information or data, (b) retrieval, consultation or use of the information or data, (c) disclosure of the information or data by transmission, dissemination or making available, and (d) alignment, combination, blocking, erasure or destruction of the information or data.
• Type of personal data: data relating to the Property that may include personal data, including image but not sound recordings of data subjects, vehicles and any other personal data captured by the Drone.
• Categories of data subject: members of the public, employees, visitors captured by the Drone, car drivers and passengers and other (lawful and unlawful) occupiers of the Property.

“Deliverables”: any outputs of the Services and any other documents or materials provided by the Company to the Client as specified in the Proposal.

"Dispute": means any contractual or non-contractual disagreement connected to the Contract.

“Duration”: has the meaning given to it in clause 16.1.

“Drone”: means an unmanned aerial systems capable of either remote control or autonomous flight through embedded systems that rely on software-controlled flight plans operating alongside onboard sensors and a global navigation satellite system.

“EU GDPR”: means the General Data Protection Regulation ((EU) 2016/679).

"Insolvency Event": means a situation where: (a) a party is unable to, or admits inability to, pay its debts as they fall due, or is, or could be, deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; (b) a party suspends, or threatens to suspend, payment of its debts; (c) any steps are taken with a view to the appointment of an administrator, administrative receiver or liquidator of a party, or a receiver of all or any part of that party's property, or such an administrator, administrative receiver, liquidator or receiver is appointed; (d) any steps are taken with a view to the obtaining of any moratorium for a party or such a moratorium is obtained in relation to a party; (e) any steps are taken with a view to the general rescheduling or readjustment of all or any part of a party's debts, or with a view to entering into any compromise, composition or arrangement with all or any class of a party's creditors or members, or such a compromise, composition or arrangement is approved, agreed or sanctioned; or (f) any event or step analogous to the events or steps set out in (a) to (e) (inclusive) occurs in any jurisdiction. 

“Intellectual Property Rights”: any and all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, , moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

“party”: the Company and/or the Customer (as the context requires) and “parties” be construed accordingly.

"Property”: means a property and/ or a land and/ or site and/ or a land where the Company shall supply the Services and/ or Deliverables and described in more detail in the Proposal and/or as otherwise agreed in writing between the parties from time to time.

“Permitted Party": means: (a) the receiving party's own employees, agents, permitted subcontractors, auditors, and professional advisors; (b) any regulator or any other person having a legal or regulatory right to receive that information.

“Proposal”: the proposal, quotation, purchase order or instruction form (or equivalent document) entered into by the Company and the Customer pursuant to, and incorporating, these Terms to supply the Deliverables and/or the Services and that has been accepted pursuant to clause 1.3.

“Services”: services provided by the Company by the Drone, including inspections of the Property, topographic mapping, 3D modelling, thermal and/ or taking promotional images or any other services as specified and agreed in the Proposal to be supplied by or on behalf of the Company to the Customer.

“Specification”: the specification for the Deliverables and/or Services that is agreed in the Proposal or otherwise supplied by or on behalf of the Company to the Customer from time to time (including following updates required to comply with Applicable Law).

“Subprocessor”: means any processor (being a sub-contractor of the Company, but excluding an employee of the Company or an employee of any of its sub-contractors) appointed by or on behalf of the Company to process Customer Personal Data and Customer Data.

“Terms”: the standard terms of business as set out in this document and as amended from time to time in accordance with clause 1.1.

“UK GDPR:” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

“VAT”: has the meaning given to it in clause 10.2.

“Working Day”: a day (other than a Saturday, a Sunday or a public holiday in England) on which banks in London are open for business.

• In these Terms (except where the context otherwise requires):
  • words in the singular include the plural and vice versa and reference to any gender includes the others;
  • reference to “a person” includes a natural person, company or unincorporated body (whether or not having separate legal personality);
  • a reference to “company” includes any company, corporation or other body corporate, wherever and however incorporated or established;
  • references to legislation are to that legislation as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision;
  • any words following the terms “including”, “include”, “in particular” or any similar terms shall be construed as illustrative only and shall not limit the sense of the words preceding those terms; and
  • a reference to “writing” or “written” does include email, unless expressly stated to the contrary in the Contract.
• Headings are for convenience only and shall not affect the interpretation of these Terms.
• The Contract shall be binding upon, and enure to the benefit of, the parties and their respective personal representatives, successors and permitted assignees, and references to any party shall include that party’s personal representatives, successors and permitted assignees.
• If there is an inconsistency between any of the provisions of these Terms, the Proposal, the following order of precedence shall apply: (a) the provisions of the Proposal; then (b) these Terms.

 

• PERFORMANCE
  • The Customer warrants and represents that it is the owner, or the authorised agent of the owner, of the Property, which it will procure is either unoccupied for the Company to provide the Deliverables and Services or, if occupied, will procure that there is no objection to the provision of such Deliverables and Services at the Property by the Company.
  • The Customer shall ensure that the Property (including access to the Property) is at all times suitably prepared and readily accessible by the Company in accordance with the Contract and the reasonable instructions given by or on behalf of the Company from time to time in order to allow the Company to supply the Deliverables and the Services in accordance with the Contract.
  • The Customer shall confirm to the Company the date of the access to the Property not later than 48 hrs prior to the commencement date as defined in the Proposal. If no confirmation is received, the Company reserves the right to postpone the delivery of the Services.
  • The Customer shall at all times have and maintain all licences, permissions, authorisations, consents and permits that it needs to receive the Deliverables and Services (including ensuring the Company can access the Property).
  • The Customer is solely responsible for ensuring that the Property is safe in all respects (including compliant with all Applicable Law relating to health and safety) for the Company to supply the Deliverables and the Services. In the absence of safe and secure working environment, the Company reserves the right to terminate the Contract pursuant to clause 3.1 for irremediable breach and charge the Customer for reasonably incurred costs.
  • The Customer shall provide adequate electricity, lighting, telecommunications, power supply and comply with other reasonable requests by the Company from time to time as specified in the Proposal to enable the Company to supply the Deliverables and/or Services.
  • The Customer warrants that the information supplied to the Company is correct.
  • The Company shall use all reasonable endeavours to meet any performance dates specified in the Proposal. If no dates are so specified, delivery will be within a reasonable time. If a date is agreed between the parties for the supply of Deliverables and/or Services and the Customer subsequently wishes to postpone or cancel that date or prevents the Company from completing the supply of the Deliverables and/or Services on that date, the Company reserves the right to charge the Customer for the full amount of the Charges that would have otherwise been payable had it not been so affected and further charges may be applied by the Company for any rearranged date.

 

• WARRANTY
  • The Company shall supply the Services with reasonable skill and care and in accordance with the Contract and the Services will conform in all material respects with their description in any applicable Specification.
  • The Company reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Company shall notify the Customer in any such event.
  • If Customer claims defective Services and or defective Deliverables, they shall provide the Company with a reasonable opportunity to assess their claim and the associated defective Services or Deliverables. If the Company approves the claim (such approval not to be unreasonably withheld or delayed), the Company shall at its option either correct defective Deliverable or reperform the defective Services or refund the relevant part of the Charges in respect of the defective Deliverable and / or Services.
  • If the Company complies with clause 3, it shall have no further liability in respect of the defective Deliverable and/ or Services.
  • Subject to clause 1, the Company shall not be liable for defective Deliverable and/ or Services if:
    • the defective Deliverables and/ or Services arise from the Company following technical or any other instruction provided by the Customer; and/or
    • the defective Deliverables and/ or Services arise through the Customer’s act or omission (including its breach of the Contract or negligence) or that of a third party not under the control of the Company.
  • Unless otherwise expressly provided in the Proposal, any works by the Company in respect of a claim under this clause 4 will be undertaken on a Working Day between 09.00AM and 18:00PM (UK time).

 

• DELIVERABLES

Unless expressly stated to the contrary in the Proposal all title to the Deliverables shall remain with the Company and no ownership of the Deliverables shall pass to the Customer under any circumstance.

 

• SERVICE SPECIFIC TERMS
  • The Customer shall ensure that appropriate signage and notification was put in place that the Drone will be in operation at the Property at a time specified in the Proposal in compliance with Applicable Law.
  • Where the Customer owns the Property, it hereby grants irrevocable consent for the Property to be recorded and all images used for the purpose of delivering the Service and the Deliverables. Where the Customer does not own the Property, it shall ensure it has all necessary permissions and / or licences to record the Property.
  • The Customer acknowledges and agrees that the Company is providing the Service for the sole purpose of inspecting, topographic mapping, construction progress, image of the Property capture, 3D modelling, thermal images, or promotional images of the Property as described in more detail in the Proposal unless otherwise agreed in the Proposal.
  • The Company shall use the Drone to capture images of the Property only excluding any individuals and/ or any other private property. In order to prevent the unintended recording, the Company shall ensure that the recording is at certain attitude and/ or the Drone has appropriately restricted field of vision.
  • The Company shall switch off any recording of individuals unless there is a necessary consent in place. Any images of individuals captured unintentionally shall be immediately destroyed by the Company unless there is a written consent from a concerned individual(s) for their image to be captured and used in the Deliverables. It is the Customer’s responsibility to obtain necessary consents from their employees, contractors and any other individuals for use of their personal data captured by the Drone.
  • In the event that a person (including the police authority) request images from the Drone, it is the Company’s responsibility to handle such requests using authorised personnel and to pass on such information to third parties, including the event of an emergency security situation.
  • The Company and the Customer shall comply at all times with all Applicable Law in respect of the operation of the Drones, including all guidance published by the Information Commissioner’s Office relating to Drones and surveillance and regulations and guidance issued by the UK Civil Aviation Authority.
  • The Company provides no warranty or guarantee that the Drone or its image capture will be uninterrupted or error free.
  • The Company reserves its rights to charge the Customer for any additional costs incurred associated with the Service not covered by the Proposal, including requests by the Customer for providing footage, or recording of additional sites.

 

• SPECIFICATION

All samples, drawings, descriptive matter, and advertising produced by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are produced solely to describe the Deliverables and/or Services approximately and do not form part of the Contract unless expressly set out in the Specification.

 

• THE CUSTOMER'S PROPERTY
  • The Company shall only use the Customer Property for the purposes of providing the Deliverables and/or Services and not for any other purpose unless agreed between the parties.
  • The Company acknowledges that the Customer Property is the exclusive property of the Customer.
  • The Company shall not be responsible for the acts or omissions of any third party personnel on site at the Customer Property.

 

• COMPLIANCE
• Each party shall comply with all Applicable Law in respect of the Contract.

 

• CHARGES
  • Subject to clause 2, the charges for the Deliverables and Services shall be the charges set out in the Proposal or, if no charges are set out in the Proposal, the charges set out in the Company’s rate card supplied to the Customer from time to time (“Charges”).
  • The Charges are stated exclusive of value added tax (“VAT”), which shall be added at the prevailing rate as applicable and paid by the Customer following delivery of a valid VAT invoice.
  • The Customer shall pay a deposit between 15% and 60% the Charges payable immediately following the Proposal being accepted by the Customer and the Company (“Deposit”). The amount of the Deposit will depend on the time required to travel to the Property, resources, required preparation and/ or expenses incurred by the Company in order to deliver the Services. The amount of the Deposit shall be agreed in the Proposal. The Deposit shall be non-refundable.
  • Without limiting clause 5, and unless otherwise agreed in the Proposal, the Company may at any time increase the Charges to reflect any increase in the cost of the Deliverables and/or Services due to, among other things:
    • any request by the Customer to change the time of delivery of Services, quantity, Specification or type of Deliverables and/or Services ordered;
    • any delay or increase in time arising from the inaccuracy or inadequacy of, or failure to provide, requisite instructions or information reasonably required from the Customer by the Company or a failure by the Customer to perform its obligations under the Contract;
    • any change in Applicable Law; or
    • any increase in the costs of supplying the Deliverables and/or Services (including any related employment, subcontractor or other third party costs).
  • The Customer shall reimburse all reasonable expenses properly and necessarily incurred by the Company during the term of the Contract, subject to production of receipts or other appropriate evidence of payment. All expenses require a prior consent of the Customer.
  • In the event that the provision of the Deliverables and/or Services by or on behalf of the Company in accordance with the Contract is prevented or hindered due to the act or omission of the Customer, including where access to the Property is denied or not achievable by the Company, the Company may, without prejudice to its other rights and remedies available to it, levy additional charges on the Customer for any resulting lost or wasted time of its staff (including an aborted visit) at its then current prevailing rates.
  • Delivery of Services out of standard working hours (9.00 am to 18.00 pm) or on a non-Working Day may incur additional Charges, at the then current prevailing rates unless otherwise agreed in the Proposal.

 

• PAYMENT
  • The Company may invoice the Customer for the Charges as set out in the Proposal or, if nothing is stated in the Proposal, prior to providing the Deliverables and/or Services.
  • The Customer shall pay the Company’s invoice in full within thirty (30) days of the date of invoice.
  • All amounts payable to the Company under the Contract shall become due immediately upon termination of the Contract despite any other provision.
  • The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless required by law.
  • Any dispute or query relating to the Charges or the Company’s invoice must be raised with the Company by the Customer in writing within the thirty (30) day payment terms referred to in clause 2. Any disputes or queries raised after such period will not be considered and such Charges and invoices will be deemed due in full for payment.
  • The Company shall be entitled to claim interest of 4% above the Bank of England rate on the late payment of any amount properly due to the Company under the Contract accruing on a daily basis from the due date for payment until payment is made in full, both before and after any judgment.
  • In the event that any Charges (which are not in bona fide dispute pursuant to clause 10.5) become overdue by more than 30 days, all other invoices submitted may, at Company's option, become due and payable on notice and the Company shall be entitled to raise invoices in respect of Services and/or Deliverables performed by the Company notwithstanding any other provision on the payment profile to the contrary.
  • Payment shall be made by bank transfer to the Company’s nominated bank account and not by any other means (including cash or cheque) unless expressly agreed in writing by the Company. Payment by means other than bank transfer may be subject to additional fees which shall be payable by the Customer to the Company. No payment shall be deemed to have been received until the Company has received cleared funds.

 

• INTELLECTUAL PROPERTY RIGHTS
  • All rights, title and interest in and to any Intellectual Property Rights in any Deliverables and Services or otherwise arising in relation to the Contract shall belong to the Company.
  • The Company grants to the Customer, with effect from the full payment of the Charges, an irrevocable, non-exclusive, non-terminable, royalty-free licence to copy and make full use of Deliverables prepared by the Company for the Customer for any purpose relating to the Property.
  • The Company shall not be liable for use of the Deliverable for any purpose other than that for which it was prepared and/or provided.

 

• CONFIDENTIALITY
  • Except to the extent set out in this clause 13, neither party shall disclose (without prior written consent) any Confidential Information received from the other party related to the Contract during the duration of the Contract and 24 months following its termination.
  • Disclosure of Confidential Information is permitted on a need-to-know basis to a Permitted Party. The receiving party shall be responsible for ensuring that a Permitted Party with which it shares Confidential Information complies with the duty of confidentiality imposed by the Contract as if it were a party to it.
  • In the event of disclosure to a third party who has a legal or regulatory right to receive that information, the receiving party shall (to the extent it is legally permitted to do so) give the disclosing party as much notice of the disclosure as possible and provide disclosing party with reasonable assistance to prevent or limit the disclosure.
• DATA PROTECTION
  • Processing as a controller
    • Both parties, in the course of performing and/or administering the Contract, exchange business contact information of the other party’s employees, contractors, and business partners in the nature of names, job titles, business email addresses, business physical address, gender), communications, complaints and telephone numbers (“BCI”). The parties agree that BCI is provided, received, and processed for the sole purpose of performing or administering the Contract and shall not be processed for any other reason unless required by law.
    • The Customer authorises the Company to use Customer Data and Customer Personal Data for the purposes of supply of the Services and the Deliverables. For such purposes, parties acknowledge that the Company acts in the capacity of an independent Controller however the Customer acknowledges it has responsibility to provide transparency information for the purposes of the Company receiving such information.
    • Both parties (each in their role as a separate and independent controller) shall comply with Applicable Data Protection Laws, and shall assist the other in complying with applicable requirements of the Applicable Data Protection Laws, in particular, each party shall ensure that it has in place appropriate technical and organisational measures (including relevant policies) to protect against unauthorised or unlawful processing and against accidental loss or destruction of, or damage to, personal data.
    • The following types of data will be shared between the parties during the Term of this agreement: Consumer Data, Consumer Personal Data and BCI.
    • No special categories of personal data will be shared between the parties.
    • Each party shall ensure that it has legitimate grounds under the Applicable Data Protection Laws for the processing of shared personal data.
    • The Company shall process the Customer Personal Data and Customer Data for the relevant Service(s) only and as set out in the Terms.
    • Both parties are responsible for maintaining a record of subject rights requests, the decisions made and any information that was exchanged. Records must include copies of the request for information, details of the data accessed and shared and where relevant, notes of any meeting, correspondence or phone calls relating to the request.
  • Processing as a processor

If the Company appoints a third party processor to process the shared personal data it shall comply with the relevant provisions of the Applicable Data Protection Laws and shall remain liable to the Customer for the acts and/or omissions of the processor.

• Sub-processing

The Customer acknowledges and agrees that its entry into the Contract constitutes its prior general written authorisation for the Company to continue to use those Sub-processors already engaged by the Company as at the date of the Contract (“Existing Sub-processors”). Where the Company proposes to appoint/use any new Sub-processors the Company shall only allow Customer Personal Data to be processed in connection with the Contract by a new Sub-processor once it has: (a) notified the Customer of any intended changes concerning the addition or replacement of Sub-processors, thereby giving the Customer the opportunity to object to such changes on reasonable grounds; and (b) ensured that the processing by a Sub-processor is governed by an agreement with that Sub-processor, containing obligations similar to those set out in this clause. The Company shall remain liable to the Customer for its Sub-processors’ compliance with its data protection obligations. Notwithstanding anything to the contrary in the Contract, the parties expressly agree that for the purpose of the notice referred to in this clause may be provided via any medium including but not limited to email, a public website or a web-based portal. 

• Audit

The Company shall, on written request, make available to the Customer information that is reasonably necessary to demonstrate compliance with the obligations of Article 28 of the UK GDPR. Where such information is not sufficient, the Company shall allow for audits at the Customer's cost, in relation to the Customer Personal Data processed pursuant to the Contract provided the Customer provides advance written notice and audits are conducted during business hours subject to security and confidentiality restrictions.

• Transfers

The Customer consents to the Company transferring Customer Personal Data outside of the UK and/or the EU, provided that the Company shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws.

• Customer Obligations

The Customer will ensure that it has all necessary appropriate consents and notices in place (including identification of retention periods and destruction) to enable lawful transfer of Customer Personal Data (which may include Special Category Data) to the Company and subsequent processing by the Company for the duration and purposes of these Terms and otherwise have responsibility for compliance under Applicable Data Protection Laws.

 

• EXCLUSIONS AND LIMITATIONS OF LIABILITY
  • Nothing in these Terms shall limit or exclude the liability or remedy of either party:
    • for death or personal injury caused by its negligence, or the negligence of its employees, agents or sub-contractors;
    • for fraud or fraudulent misrepresentation;
    • a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 or
    • for any act, omission or matter, liability for which may not be legally excluded or limited.
  • Subject to clause 1:
    • the Company’s total liability to the Customer in each twelve month period under or in respect of the Contract for any claim or claims, whether arising in contract, tort (including negligence), breach of statutory duty or restitution, or for misrepresentation, or otherwise howsoever (including any damage to the Customer Property) shall in no circumstances exceed an amount equal to one hundred per cent (100%) of the Charges paid under the Contract during that twelve (12) month period; and
    • the Company shall not have any liability to the Customer, howsoever arising for: (a) any direct or indirect loss of profit, loss of revenue, loss of contract, loss of opportunity, loss of savings, loss of (or unavailability of) use of any Deliverables, loss of production or productivity, damage or depletion of goodwill; or (b) any special, indirect or consequential loss.
  • The Company shall not be liable for any failure to perform the Contract (including any delay or non-performance) to the extent that such failure has been caused or contributed by the act or omission of the Customer (including any failure by the Customer to provide complete and/or accurate information) or any other party not under the control of the Company.
  • The Company shall not be liable for any claim unless it is made in writing within three (3) months of the event giving rise to such claim with sufficient information to enable the Company to investigate.

 

• TERM AND TERMINATION
  • The Contract shall commence on the date stated in the Proposal (or, if no such date is stated in the Proposal, on commencement of the provision of the Deliverables and/or Services by the Company as determined by the Company) and shall, subject to early termination in accordance with this clause, continue for the period set out in the Proposal (or, if no such date is stated in the Proposal, until completion of the supply of the Deliverables and/or Services) (“Duration”).
  • The Company may terminate the Contract with immediate effect where the Customers fails to secure necessary consents and/ or where in an opinion of the Company the Service cannot be delivered.
  • A party shall, without prejudice to any other rights or remedies it may have, have the right at any time by giving notice in writing to the other party to immediately terminate the Contract if:
    • if the other party materially breaches the Terms and the breach: (a) cannot be remedied; or (b) can be remedied but has not been remedied within thirty (30) days of written notice of the breach; or
    • the other party is subject to an Insolvency Event. The Company shall, without prejudice to any other rights or remedies it may have, have the right at any time by giving notice in writing to the Customer to terminate the Contract, without liability to the Customer, if any Charges or other amounts owed to it under the Contract (which are not in bona fide dispute pursuant to clause 5) are not fully paid within fourteen (14) days after their due date.
  • On expiry or termination of the Contract or any part of it for any reason:
    • the Customer shall immediately return all Deliverables for which the Charges have not been paid;
    • all Charges properly owed under the Proposal and all other amounts due to the Company under the Contract shall become immediately due and payable by the Customer; and
    • the receiving party shall, at the direction of the disclosing party, return or destroy all Confidential Information of the disclosing party.
  • The termination of the Contract for any reason shall not affect the accrued rights, remedies, obligations or liabilities of the Company and the Customer existing at termination.
  • Such of these Terms which expressly or by implication are intended to come into or remain in force on or after the termination of the Contract shall remain in full force and effect.

 

• NON-SOLICITATION
  • Neither party shall (except with the prior written consent of the other party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the other party any person employed or engaged by such other party in the supply or receipt of the Deliverables and/or Services at any time during the Duration or for a further period of six (6) months after the termination of the Contract other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff of the other party.
  • If either party commits any breach of clause 1, the breaching party shall, on demand, pay to the claiming party a sum equal to one (1) year's basic salary or the annual fee that was payable by the claiming party to that employee, worker or independent contractor plus the recruitment costs incurred by the claiming party in replacing such person.

 

• ASSIGNMENT and subcontracting

The parties shall not be entitled to assign, or deal in any other manner with, the Contract or any part of it, including sub-contracting any of its obligations under the Contract, without the prior written consent of the other party.

 

• FORCE MAJEURE

If either party is delayed or prevented in the performance of any of its obligations under the Contract by an event, circumstance or cause beyond its reasonable control which, by its nature, could not have been foreseen or, if foreseeable, was unavoidable (including war or other armed conflict, terrorism, riot, civil commotion, interference by civil or military authorities, national or international emergency or calamity, strikes, lock-outs or other industrial disputes, (whether involving its own workforce or any third party’s), failure of energy supply or telecommunications, disruption to transport (including adverse traffic), malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of buildings or other structures, fires, floods, storms, earthquakes, natural disasters, extreme adverse weather conditions, other acts of God, presence of dangerous or protected, structures, substances or animals, loss at sea, epidemics, pandemics or similar events (including any government restrictions imposed in relation to an epidemic, pandemic or similar event, such as restrictions on working conditions and/or lockdowns) and default of suppliers or sub-contractors) that party shall not be liable for such delay or non-performance and the time for performance of the affected obligation shall be extended by such period as is reasonable to enable that party, using reasonable endeavours, to perform that obligation.

 

• COMMUNICATIONS
  • Any communication between the parties about the Contract shall be in writing, in English, and delivered personally, sent by pre-paid registered post or recorded delivery (or pre-paid registered air mail if overseas) to the other party’s registered office or address, including email address set out in the Proposal or such changed address or email address as shall be notified from time to time.
  • Communications shall be deemed to have been received:
    • if delivered personally, at the time of delivery to the address;
    • if sent by pre-paid registered post or recorded delivery, 48 hours after posting;
    • if sent by pre-paid registered airmail, at 9.00am on the fifth (5^th) Working Day after

posting; and

• if sent by email, 24hrs after the time of transmission.

• This clause 20 does not apply to the service of any proceedings or other documents in any legal action or any arbitration or other method of dispute resolution.

 

• GENERAL
  • The Contract does not constitute, establish or imply any partnership, joint venture, agency, employment or fiduciary relationship between the parties.
  • If any provision of the Terms is unenforceable, then it shall be modified to the minimum extent necessary to make it enforceable. If it is not possible to modify the provision, then it will be deleted.
  • No provision of the Contract shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to the Contract.
  • A party’s delay or failure to exercise its rights under the Contract will not waive the party’s right to exercise that, or any other, right.
  • This Contract may be executed in counterparts or duplicates, each of which, when executed, shall constitute an original of this Contract and such counterparts or duplicates together shall constitute one and the same instrument.

The Contract and any Dispute shall be governed by English law and the English courts shall have exclusive authority to settle any Disp