1. INTERPRETATION

1.1 The definitions and rules of interpretation in this clause apply in these Conditions.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Client: the person or firm who purchases Services from the Supplier as set out in the Order Form.

Client Data: the data (including any personal data as defined in the Data Protection Act 1998) inputted by the Client, any Group Company, or the Supplier on the Client’s and/or any Group Company’s behalf for the purpose of using the Services or facilitating the Client’s and/or any Group Company’s use of the Services.

Conditions: these terms and conditions as amended from time to time in accordance with clause 13.2.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.5.

Consultancy Services: the services provided by or on behalf of the Supplier for the Client or any Group Company as more particularly described in the Order Form.

Consultant: the Supplier’s consultant (or Consultants) who provide(s) the Consultancy Services.

Contract: the contract between the Supplier and the Client for the supply of Services in accordance with the Order Form and these Conditions.

Depot: the combined cluster of operating centres set out within an Operator’s Licence and in respect of which a management team is in full and effective control.

Documentation: the document made available to the Client by the Supplier within the Software and online via www.silk-thread.co.uk.

or such other web address notified by the Supplier to the Client from time to time which sets out a description of the Services and the user instructions for the Services.

Effective Date: has the meaning set out in clause 2.2.

Group Company: the Client’s subsidiaries or holding company and any other subsidiaries of the Client’s holding company which are intended to receive the benefit of the Services, as set out in the Order Form.

Initial Term: the initial term of the Contract as set out in the Order Form.

Licence Fee: the fee payable by the Client for the supply of the Services based upon the number of Group Companies and Depots which will have access to the Services, as set out in the Order Form and in accordance with clause 7.

Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.

Order: the Client’s order for Services as set out in the Client’s Order Form.

Order Form: the form on which the Client’s Order is made, setting out the specific terms of service.

Process: as set out in the Data Protection Act 1998 and Processes and Processing shall be construed accordingly.

Renewal Term: the period described in clause 12.1.

Services: the SilkThread® Services and Consultancy Services.

SilkThread® Services: the services provided by the Supplier to the Client under these Conditions via www.silk-thread.co.uk, as more particularly described in the Documentation and as set out in the Order Form.

Software: the third party or Supplier developed online software applications licensed by the Supplier as part of the Services in accordance with these Conditions.

Supplier: Labyrinth Logistics Consulting Limited (trading as SilkThread) registered in England and Wales with company number 06674643 and registered address 1110 Elliott Court, Coventry Business Park, Coventry, West Midlands, CV5 6UB. SilkThread® Services SilkThread® ServicesTerm: has the meaning given in clause 12.1 (being the Initial Term together with any subsequent Renewal Terms).

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.2 Clause headings shall not affect the interpretation of these Conditions. References to clauses are to the clauses of these Conditions.

1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.6 Any words following the term including include or in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract. Any such reference shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision.

1.8 A reference to writing or written includes faxes and e-mail.

 


  1. BASIS OF CONTRACT

2.1 The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions. The Order Form upon which the Order is made must be signed by the Client when the Order is made.

2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order by signing and returning the Order Form, at which point and on which date the Contract shall come into existence (Effective 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 Supplier which is not set out in the Contract.

2.4 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.

2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 calendar days from its date of issue.

 


  1. SERVICES

SilkThread® Services

3.1 Subject to the Client paying the Licence Fee in accordance with these Conditions, the Supplier hereby grants to the Client a non-exclusive, non-transferable, non-licensable right to use the SilkThread® Services and the Documentation during the Term.

3.2 For the avoidance of doubt, the Supplier grants to the Client a revocable, non-exclusive, non-transferable, non-licensable right to use the Software used in the delivery of the SilkThread® Services for the duration of the Term to the extent that the Group Company is identified on the Order Form as a service recipient.

3.3 The Supplier shall, during the Term, provide the SilkThread® Services and make available the Documentation to the Client on and subject to the terms of these Conditions.

3.4 The Supplier shall use its reasonable endeavours to make the SilkThread® Services available 24 hours a day, seven days a week, except for planned maintenance performed inside or outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Client at least 6 Normal Business Hours’ notice in advance.

Consultancy Services

3.5 Subject to the Client paying the Licence Fee in accordance with these Conditions, the Supplier shall during the Term provide such quantity of days’ Consultancy Services to the Client on and subject to the terms of these Conditions and at such rates and at such times as shall be agreed in the Order Form or otherwise by agreement between the parties.

3.6 The Supplier shall use its reasonable endeavours to ensure that the Consultant(s) is (are) available at all times on reasonable notice to provide such additional assistance or support (in addition to the number of days’ Consultancy Services as set out in the Order Form) as the Client may require, subject to the Client’s payment of such additional charges as the Supplier may propose, such charges to be based upon the Supplier’s list price then in force.

3.7 Unless it has been specifically authorised to do so by the Client in writing, the Supplier shall not:

3.7.1 have any authority to incur any expenditure in the name of or for the account of the Client; and

3.7.2 hold itself out as having authority to bind the Client.

 


  1. CLIENT DATA

4.1 The Client shall own all right, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.

4.2 The Supplier shall follow its archiving procedures for Client Data which will, insofar as it is required to do so comply with the Data Protection Act 1998. In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by the Supplier in accordance with its archiving procedure. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Client Data maintenance and back-up).

4.3 If the Supplier Processes any Client Data on the Client’s behalf when performing its obligations under these Conditions, the parties record their intention that the Client shall be the data controller and the Supplier shall be a data processor and in any such case:

4.3.1 the Client acknowledges and agrees that the Client Data may be transferred or stored outside the EEA or the country where the Client is located in order to carry out the Services and the Supplier’s other obligations under these Conditions;

4.3.2 the Client shall ensure that the Client is entitled to transfer the relevant Client Data to the Supplier so that the Supplier may lawfully use, Process and transfer the Client Data in accordance with these Conditions on the Client’s behalf;

4.3.3 the Client shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, Processing, and transfer as required by all applicable data protection legislation;

4.3.4 the Supplier shall Process the Client Data only in accordance with the terms of these Conditions, the Data Protection Act 1998 and any lawful instructions reasonably given by the Client from time to time; and

4.3.5 each party shall take appropriate technical and organisational measures against unauthorised or unlawful Processing of the Client Data or its accidental loss, destruction or damage.

 


  1. SUPPLIER’S OBLIGATIONS

5.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

5.2 The undertaking at clause 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not comply with the foregoing undertaking, the Supplier will, at its expense, use all reasonable endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of the undertaking set out in clause 5.1. Notwithstanding the foregoing, the Supplier:

5.2.1 does not warrant that the Client’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Client through the Services will meet the Client’s requirements; and

5.2.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

5.3 These Conditions shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Conditions.

5.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Conditions.

 


  1. CLIENT’S OBLIGATIONS

6.1 The Client shall:

6.1.1 ensure that the terms of the Order are complete and accurate;

6.1.2 provide the Supplier with:

(a) all necessary co-operation in relation to any applicable Contract; and

(b) all necessary access to such information as may be required by the Supplier

in order to provide the Services, including but not limited to Client Data, security access information and configuration services;

6.1.3 comply with all applicable laws and regulations with respect to its activities under any applicable Contract;

6.1.4 carry out all other Client responsibilities set out in these Conditions in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;

6.1.5 ensure that its employees, agents and authorised independent contractors use the Services and the Documentation in accordance with the terms of these Conditions and shall be responsible for any such person’s breach of these Conditions;

6.1.6 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under these Conditions, including without limitation the Services;

6.1.7 ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and

6.1.8 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.

6.2 The Client undertakes that:

6.2.1 it will not allow or suffer any individual to make use of the Services and/or Documentation who is not an employee, agent or independent contractor of or to the applicable Depot of the Group Company of the Client authorised to make use of the Services and/or Documentation;

6.2.2 the SilkThread® Services and Documentation shall be password protected, with such password being kept confidential and that other reasonable measures shall be taken by the Client to ensure the security of the SilkThread® Services and Documentation;

6.2.3 it shall permit the Supplier to audit the Client’s use of the Services;

6.2.4 if any of the audits referred to in clause 6.2.3 reveal that any password has been provided to any person who is not authorised to make use of the SilkThread® Services and/or Documentation, then without prejudice to the Supplier’s other rights, the Client shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such person; and

6.2.5 if any of the audits referred to in clause 6.2.3 reveal that the Client has shared its account with persons who are not authorised to make use of the SilkThread® Services and/or Documentation, then without prejudice to the Supplier’s other rights, the Supplier will be entitled to impose such additional charges on the Client as it sees fit, at all times acting reasonably.

6.3 The Client shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the SilkThread® Services that:

6.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

6.3.2 facilitates illegal activity;

6.3.3 depicts sexually explicit images;

6.3.4 promotes unlawful violence;

6.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

6.3.6 in a manner that is otherwise illegal or causes damage or injury to any person or property;

and the Supplier reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to any material that breaches the provisions of this clause.

6.4 The Client shall not:

6.4.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

(a) and except to the extent expressly permitted under these Conditions, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or

(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

6.4.2 access all or any part of the Services and/or Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

6.4.3 use the Services and/or Documentation to provide or resell similar services to third parties; or

6.4.4 subject to clause 13.7, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except any named Depot within any applicable Group Company, or

6.4.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 6.

6.5 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.

6.6 The Client shall notify the Supplier promptly in writing of any increase in the number of Depots or Group Companies for the benefit of which the Client wishes to receive the Services.

 


  1. CHARGES AND PAYMENT

7.1 The Client shall pay the Licence Fee to the Supplier for the Services in accordance with this clause 7 and the Order Form.

7.2 The Supplier shall invoice the Client in the frequency as set out in the Order Form under the section entitled “Payment Terms”

7.3 The Client shall pay each invoice submitted by the Supplier:

7.3.1 within 30 days of the date of the invoice; and

7.3.2 in full and in cleared funds to the applicable bank details as set out in the Order Form, and

time for payment shall be of the essence of the Contract.

7.4 If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier:

7.4.1 the Supplier may, without liability to the Client, disable the Client ’s and/or Depot’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

7.4.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

7.5 All amounts and fees stated or referred to in these Conditions:

7.5.1 shall be payable in pounds sterling;

7.5.2 are, subject to clause 11.4.2, non-cancellable and non-refundable;

7.5.3 are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.

7.6 The Supplier shall be entitled to increase the Licence Fee by a reasonable amount not more than once in every twelve (12) month period at the start of each Renewal Period upon 30 days’ prior notice to the Client and the Order Form shall be deemed to have been amended accordingly.

 


  1. PROPRIETARY RIGHTS

8.1 The Client acknowledges and agrees that as between the Supplier and the Client, the Supplier and/or its licensors own all intellectual property rights in the Software, the Services and the Documentation. Except as expressly stated herein, these Conditions do not grant the Client any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, the Services or the Documentation.

8.2 The Supplier confirms that it has all the rights in relation to the Software, the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, any applicable Contract.

 


  1. CONFIDENTIALITY

9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under any applicable Contract. A party’s Confidential Information shall not be deemed to include information that:

9.1.1 is or becomes publicly known other than through any act or omission of the receiving party;

9.1.2 was in the other party’s lawful possession before the disclosure;

9.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

9.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or

9.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

9.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of any applicable Contract.

9.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of any applicable Contract.

9.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

9.5 The Client acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.

9.6 The Supplier acknowledges that the Client Data is the Confidential Information of the Client.

9.7 This clause 9 shall survive termination of any applicable Contract, however arising.

9.8 No party shall make, or permit any person to make, any public announcement concerning any applicable Contract without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

 


  1. INDEMNITY

10.1 The Client shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client’s use of the Services and/or Documentation, provided that:

10.1.1 the Client is given prompt notice of any such claim;

10.1.2 the Supplier provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client’s expense; and

10.1.3 the Client is given sole authority to defend or settle the claim.

10.2 The Supplier shall defend the Client, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:

10.2.1 the Supplier is given prompt notice of any such claim;

10.2.2 the Client provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and

10.2.3 the Supplier is given sole authority to defend or settle the claim.

10.3 In the defence or settlement of any claim, the Supplier may procure the right for the Client to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.

10.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:

10.4.1 a modification of the Services or Documentation by anyone other than the Supplier; or

10.4.2 the Client’s use of the Services or Documentation in a manner contrary to the instructions given to the Client by the Supplier; or

10.4.3 the Client’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

10.5 The foregoing and clause 10.4.2 state the Client’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

 


  1. LIMITATION OF LIABILITY

11.1 This clause 11 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client:

11.1.1 arising under or in connection with these Conditions;

11.1.2 in respect of any use made by the Client of the Services and Documentation or any part of them; and

11.1.3 in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Conditions.

11.2 Except as expressly and specifically provided in these Conditions:

11.2.1 the Client assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Client, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Client in connection with the Services, or any actions taken by the Supplier at the Client’s direction;

11.2.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and

11.2.3 the SilkThread® Services and the Documentation are provided to the Client on an “as is” basis.

11.3 Nothing in these Conditions excludes the liability of the Supplier:

11.3.1 for death or personal injury caused by the Supplier’s negligence; or

11.3.2 for fraud or fraudulent misrepresentation.

11.4 Subject to clause 11.2 and clause 11.3:

11.4.1 the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any: loss of profits, loss of business, depletion of goodwill and/or similar losses; or loss or corruption of data or information; or pure economic loss; or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Conditions; and

11.4.2 the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of any applicable Contract shall be limited to:

(a) the total Licence Fee paid by the Client during the twelve (12) months immediately preceding the date on which the claim arose; or

(b) where the claim arises during the first twelve (12) months of the Contract, the total anticipated Licence Fee to be paid by the Client to the Supplier during the first twelve (12) months of the Contract.

 


  1. TERM AND TERMINATION

12.1 The Contract shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue for the Initial Term and, thereafter, shall be automatically renewed for successive periods of three (3) months (each a Renewal Term), unless:

12.1.1 during the Initial Term, either party notifies the other party of termination, in writing, at least 90 days before the end of the Initial Term, in which case the Contract shall terminate upon the expiry of the Initial Term;

12.1.2 during any Renewal Term, either party notifies the other party of termination, in writing, at least 30 days before the end of that Renewal Term, in which case the Contract shall terminate upon the expiry of that Renewal Term; or

12.1.3 otherwise terminated in accordance with the provisions of these Conditions;

and the Initial Term together with any subsequent Renewal Terms shall constitute the Term.

12.2 Without affecting any other right or remedy available to it, either party may terminate this Contract with immediate effect by giving written notice to the other party if:

12.2.1 the other party fails to pay any amount due under this Contract on the due date for payment and remains in default not less than thirty (30) days after being notified in writing to make such payment;

12.2.2 the other party commits a material breach of any other term of these Conditions which is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;

12.2.3 the other party repeatedly breaches any of the terms of these Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Conditions;

12.2.4 the other party becomes subject to any of the events listed in clause 12.3, or the terminating party reasonably believes that the other party is about to become subject to any of them and notifies the other party accordingly.

12.3 For the purposes of clause 12.2.4, the relevant events are:

12.3.1 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of sections 123 of the Insolvency Act 1986; or

12.3.2 an order is made or a resolution is passed for the winding up of the other party or the appointment of a liquidator; or

12.3.3 an administrator, administrative receiver or receiver is appointed, or there is an application for the appointment of any of the above or for an administration order, in respect of the whole or any part of the other party’s assets or business; or

12.3.4 the other party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.

12.4 On termination of the Contract for any reason:

12.4.1 all licences granted under these Conditions shall immediately terminate;

12.4.2 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

12.4.3 the Supplier may destroy or otherwise dispose of any of the Client Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of the Contract, a written request for the delivery to the Client of the then most recent back-up of the Client Data. The Supplier shall use reasonable endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Client Data; and

12.4.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these Conditions which existed at or before the date of termination shall not be affected or prejudiced.

 


  1. MISCELLANEOUS MATTERS

13.1 Force Majeure: The Supplier shall have no liability to the Client under these Conditions if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Client is notified of such an event and its expected duration.

13.2 Variation: No variation of these Conditions shall be effective unless it is in writing and agreed by the parties (or their authorised representatives).

13.3 Waiver: No failure or delay by a party to exercise any right or remedy provided under these Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

13.4 Rights and remedies: Except as expressly provided in these Conditions, the rights and remedies provided under these Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.

13.5 Severance: If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

13.6 Entire agreement: These Conditions, the Order Form and any documents referred to in them, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.

13.7 Assignment: The Client shall not, without the prior written consent of the Supplier (such consent not to be unreasonably withheld, delayed or conditioned), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Conditions.

The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Conditions.

13.8 No partnership or agency: Nothing in these Conditions is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

13.9 Third party rights: These Conditions do not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

13.10 Notices: Any notice required to be given under these Conditions shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Order Form, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in the Order Form.

A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax or e-mail shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender or the time displayed on the e-mail).

13.11 Governing Law & Jurisdiction: These Conditions and any dispute or claim arising out of or in connection with them or their 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.

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 these Conditions or their subject matter or formation (including non-contractual disputes or claims).

©Labyrinth Logistics Consulting Limited October 2014