BDA

Terms & Conditions

Buckingham Design Associates Limited trading as bda
Terms and Conditions for Services
(“Service Conditions”)

1. INTERPRETATION

1.1 In these Service Conditions the following words shall have the meanings attributed to them below.

Acceptance: as set out in clause 4.

Application: a mobile and/or smart telephone development or application to be developed by the Supplier pursuant to a Contract.

Business Day: any day (other than a Saturday or Sunday) when banks are generally open for normal business in London.

Charges: the charges in respect of Services set out in a Quotation, together with any charges arising as a result of changes to Services specified in a Quotation.

Confidential Information: all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:

(a) identified as confidential at the time of disclosure; or

(b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.

Contract: any contract entered into between the Supplier and the Customer from time to time concerning the performance of Services to which the terms of these Service Conditions apply.

Customer: the client contracting for Services under these Service Conditions.

Design(s): any design(s) to be supplied to the Customer by the Supplier as set out in a Quotation.

Effective Date: the date on which the Customer signs at the end of these Service Conditions or otherwise accepts these Service Conditions.

Fees: the fees for Third Party Products as set out in a Quotation.

Force Majeure Event: any event arising which is beyond the reasonable control of the affected party (including significant failure of a part of the power grid, significant failure of the internet, any industrial dispute affecting any third party, governmental regulations, fire, natural disaster, flood, disaster, civil riot or war, or terrorism).

Good Industry Practice: the exercise of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced operator engaged in the same type of undertaking and under the same or similar circumstances and conditions, seeking in good faith to comply with its contractual obligations, complying with all applicable laws, rules and regulations including codes of practice and conduct in force from time to time relating to any Services.

Intellectual Property Rights: all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know‑how, confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, petty patents, utility models, design rights, semi‑conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.

Materials: any content provided to the Supplier by the Customer from time to time for incorporation in a Design(s) and/or a Site and/or an Application.

Misrepresentation: any untrue statement (whether written or oral) made to a party on which it relied in entering into a Contract.

Order: the Customer’s written acceptance of a Quotation or deemed acceptance of a Quotation by accepting delivery of Services, such acceptance creating a Contract.

Permitted Uses: the use(s) for which the Customer is licensed to use a Design(s) and/or a Site and/or an Application, as set out in a corresponding Quotation.

Provider: Rackspace Limited (company number 03897010) or such replacement third party provider of website hosting services.

Quotation: an indicative written quotation provided by the Supplier from time to time and accepted by the Customer setting out, as applicable, Services, time of performance for Services, Charges, Fees, terms of payment, Design(s), details of any Site, details of any Application, Third Party Products and Permitted Uses.  Such quotation shall constitute an offer by the Supplier which the Supplier may amend in the event of it containing any errors.

Services: as applicable, any design, application development, website development and website hosting services to be provided as set out in a Quotation.

Site: a website to be developed and/or hosted by the Supplier pursuant to a Contract.

Supplier: Buckingham Design Associates Limited (trading as bda), a private limited company with company number 02721714 and which has its registered office at 1 Osier Way, Swan Business Park, Buckingham, MK18 1TB.

Third Party Products: any third party products set out in a Quotation.

VAT: value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement tax and any similar additional tax.

Visitor: a visitor to a Site.

1.2 Clause headings do not affect the interpretation of these Service Conditions.

1.3 In the event and to the extent only of any conflict between these Service Conditions and a Quotation, the Quotation shall prevail.

1.4 Words in the singular include the plural and in the plural include the singular.

1.5 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re‑enactment and includes any subordinate legislation for the time being in force made under it.

1.6 References to including and include(s) mean respectively including without limitation and include(s) without limitation.

1.7 References to “content” include any kind of text, information, image, or audio or video material which can be incorporated in a Design, in a Site for access by a Visitor to that Site or in an Application.

1.8 Writing or written includes faxes and e-mails.

1.9 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.10 All Quotations and Orders from time to time shall be subject to the terms of these Service Conditions.  The terms of these Service Conditions shall be incorporated into all Contracts notwithstanding that any document whereby the Customer submits an Order may contain or refer to printed terms or conditions inconsistent with or differing from the terms of these Service Conditions.  The terms of these Service Conditions together with each accompanying Quotation in relation to an Order shall form each Contract.

1.11 Where Services include website hosting services, the Supplier shall use the Provider to perform those services and these Service Conditions and the applicable Contract shall be subject to the terms and conditions which the Provider may from time to time apply to the supply of those services for resale of those services by the Supplier and such terms and conditions shall be incorporated into these Service Conditions.  In the event of any conflict arising between the terms of these Service Conditions and such terms and conditions, such terms and conditions will prevail.  The Supplier shall not be liable for any failure to deliver website hosting services caused by the Supplier’s inability to obtain them from the Provider or by the Supplier’s compliance with the Provider’s terms and conditions.  A copy of the Provider’s terms and conditions is available upon request and the current terms and conditions appear at http://www.rackspace.co.uk/legal/general-terms/ and http://www.rackspace.co.uk/legal/managed-hosting-terms/.  The Customer agrees to be bound by, and undertakes to the Supplier to comply with, all terms of the Provider’s terms and conditions to the extent that they apply to the obligations of the Supplier thereunder so that the Supplier is able to fulfill its obligations thereunder and so as to avoid any act or omission which causes or contributes to any breach by the Supplier of such terms and conditions.  In addition to the foregoing:

(a) the Customer agrees to abide by the Provider’s acceptable use policy found at http://www.rackspace.co.uk/legal/aup/ and shall have no rights against the Provider in connection with the website hosting services the Supplier is reselling;

(b) if the Supplier is reselling website hosting services to the Customer that include Microsoft® software, the Customer agrees to abide by the Microsoft® licence terms posted at http://www.rackspace.co.uk/legal/microsoft-license/; and

(c) the Customer agrees that it may not use any website hosting services in any situation where failure or fault of those services could lead to death or serious bodily injury of any person, or to physical or environmental damage.  For example, the Customer may not use, or permit any other person to use, such services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or medical life support devices.

2. SUPPLIER RESPONSIBILITIES

2.1 From the Effective Date the Supplier shall provide Services to the Customer from time to time on the terms and conditions of these Service Conditions.

2.2 Services supplied under any Contract shall, subject to clause 13, continue to be supplied until the Services in respect of any particular Contract are completed in accordance with the applicable Quotation.

2.3 The Supplier shall provide Services with reasonable skill and care, in accordance with these Service Conditions and any Quotation, and in accordance with Good Industry Practice.

2.4 The Supplier shall use reasonable endeavours to meet any performance dates specified in a Quotation, but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of these Service Conditions or any Contract.

2.5 Where Services include website hosting services, the Supplier does not promise that those services will be uninterrupted, error-free or completely secure.  The Customer acknowledges that there are risks inherent in internet connectivity that could result in the loss of the Customer’s privacy, information, property, data and otherwise.

3. CUSTOMER RESPONSIBILITIES

3.1 The Customer acknowledges that the Supplier’s ability to provide Services is dependent upon the full and timely co‑operation of the Customer (which the Customer agrees to provide), as well as the accuracy and completeness of any information, data, documentation, content and Materials the Customer provides to the Supplier.  Accordingly, the Customer shall provide the Supplier with timely access to, and use of, all information, data, documentation, content and Materials reasonably required by the Supplier for the performance by the Supplier of its obligations.

3.2 The Customer shall be responsible for the accuracy and completeness of any Materials in accordance with clause 8.3.

3.3 The Customer shall be responsible for checking that any Design(s) and/or any Site and/or any Application are accurate and complete and compliant with relevant legislation and regulations.

3.4 The Customer is responsible for understanding any regulatory requirements applicable to its business and for selecting and using Services in a manner that complies with any applicable requirements.

4. ACCEPTANCE

4.1 Acceptance of any Design(s) and/or any Site and/or any Application shall be deemed to have taken place upon the occurrence of any of the following events:

(a) the Customer uses any part of the Design(s) and/or the Site and/or the Application for any revenue‑earning purposes or to provide any services to third parties other than for test purposes; or

(b) the Customer unreasonably delays the provision of feedback requested in relation to the Design(s) and/or the Site and/or the Application for a period of 7 Business Days from the date on which the Supplier requests such feedback.

5. THIRD PARTY PRODUCTS

Any Third Party Products shall be supplied in accordance with the relevant third party’s standard terms.  Any Fees for such Third Party Products are payable in addition to any Charges.

6. PROJECT MANAGEMENT

Each party shall appoint a project manager who shall:

(a) provide professional and prompt liaison with the other party; and

(b) have the necessary expertise and authority to commit the relevant party.

7. CHARGES AND PAYMENT

7.1 The Supplier shall issue VAT invoices in respect of any Charges and any Fees in accordance with the corresponding Quotation, and the Customer shall pay to the Supplier the Charges and/or Fees set out in such Supplier’s invoice within 30 days of the date of the Supplier’s invoice.

7.2 All Charges and Fees set out in a Quotation are exclusive of VAT which the Customer will pay in addition to any Charges and Fees.

7.3 If the Customer fails to pay any amount payable by it under these Service Conditions, the Supplier shall be entitled, but not obliged, to charge the Customer interest on the overdue amount.  Such interest shall be payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 4% per annum above the base rate for the time being of Handelsbanken Bank.  Such interest shall accrue on a daily basis and be compounded quarterly.  The Supplier reserves the right to claim interest and late payment compensation under the Late Payment of Commercial Debts (Interest) Act 1998.

7.4 If the Customer fails to pay any overdue amount payable by it under these Service Conditions within 4 Business Days of the Supplier’s written notice to do so, the Supplier shall be entitled to suspend Services without liability until such time as all arrears under all Contracts are paid in full.

7.5 The Customer shall pay all amounts due under a Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part.  The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

8. WARRANTIES

8.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform the agreements constituted by any Contract.

8.2 The Supplier warrants that it shall perform Services with reasonable care and skill and in accordance with Good Industry Practice.

8.3 The Customer hereby undertakes and warrants to the Supplier that:

(a) the Customer will indemnify the Supplier against all indirect and/or direct costs, claims, damages, losses, expenses and liabilities suffered or incurred by the Supplier as a result of the undertakings and warranties provided in this clause 8.3 being breached;

(b) the Materials and/or any information supplied by the Customer to the Supplier are accurate, complete and true;

(c) in respect of any information that contains the name or pictorial representation (photographic or otherwise) of any living person and/or any part of any living person and/or any data by which any living person is or can be identified, the Customer has obtained the express authority of such living person to make use of such name, representation and/or data;

(d) the Materials and/or any information supplied by the Customer are legal, decent, honest and truthful and comply with all applicable laws, rules, regulations and codes relating to the same as may be appropriate; and

(e) no Materials to be used in any Design(s) and/or any Site and/or any Application contain any data, image or other material that:

(i) is offensive, obscene or indecent; or

(ii) is defamatory, threatening, or racially, ethnically or otherwise objectionable; or

(iii) is designed or likely to cause annoyance, inconvenience, unwanted attention or needless anxiety to any other person; or

(iv) infringes the rights (including, but not limited to, the intellectual property rights) of another person; or

(v) is designed or likely to cause disruption to any computer system or to any network; or

(vi) is illegal or designed or likely to induce an illegal act.

8.4 These Service Conditions set out the full extent of the Supplier’s and the Customer’s obligations and liabilities in respect of the supply of Services.  All conditions, warranties or other terms concerning Services which might otherwise be implied into these Service Conditions or any Contract (whether by statute or otherwise) are hereby expressly excluded.

9. LIMITATION OF REMEDIES AND LIABILITY

9.1 The Customer will be classed as a business customer unless the Customer indicates in writing to the Supplier that Services provided by the Supplier will not be used in the course of the Customer’s business.

9.2 Nothing in these Service Conditions shall operate to exclude or limit the Supplier’s liability for:

(a) death or personal injury caused by its negligence; or

(b) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

(c) fraud; or

(d) any other liability which cannot be excluded or limited under applicable law.

9.3 The Supplier shall not be liable to the Customer for any damage to software, damage to or loss of data, loss of profit, anticipated profits, revenues, anticipated savings, goodwill, business opportunity or use or for any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses or for any wasted management time even if the Supplier has been advised by the Customer, or should have reasonably been aware, of the possibility of such damage or loss.

9.4 The Supplier shall not be liable in the event of any failure of any Design(s) and/or any Site and/or any Application to perform substantially in accordance with expectations if this is caused by any Materials.

9.5 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Service Conditions.

9.6 Subject to clause 9.2, the Supplier’s aggregate liability in respect of claims based on events arising out of or in connection with any Contract and any use made by the Customer of Services, any Design(s), any Site and/or any Application, whether in contract or tort (including negligence or breach of statutory duty) or otherwise, shall in no circumstances exceed 50% of the total Charges payable by the Customer to the Supplier under that Contract.

9.7 The Customer agrees that it will not bring a claim under a Contract more than 2 years after the event giving rise to the claim occurred.

9.8 The Customer acknowledges that the provisions of these Service Conditions are essential to protect the legitimate commercial and business interests of the Supplier and that they are fair and reasonable having regard to the level of Charges.  The Customer acknowledges that the level of Charges properly reflect the delineation of risk between the parties.  The Customer acknowledges that it has had the opportunity to seek and obtain legal advice on the terms of these Service Conditions whether or not it has chosen to do so.

10. INTELLECTUAL PROPERTY RIGHTS

10.1 All Intellectual Property Rights in any Design(s) and/or any Site and/or any Application (including in the content and “look and feel” of the Site/Application and the software used in creating the Site/Application but excluding any Materials) arising in connection with a Contract shall, as between the Customer and the Supplier, be the property of the Supplier.  Subject to receipt of any Charges and Fees when due, the Supplier hereby grants the Customer a non‑exclusive licence of use in respect of such Intellectual Property Rights for the purpose of using the Design(s) and/or operating the Site/Application for the Permitted Uses.

10.2 The Customer shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that any Materials infringe the Intellectual Property Rights of a third party.

10.3 For the avoidance of doubt, the Customer is not permitted to alter, amend or imitate any Design(s) and/or any Site and/or any Application except as specifically set out in the corresponding Quotation or otherwise agreed in writing by the Supplier.

11. CONTENT

11.1 If specified in a Quotation, the Supplier shall grant the Customer access to any Site and/or any Application referred to in the Quotation in order to update information held on the Site/Application and/or the Supplier shall update the Site/Application with Materials provided from time to time by the Customer in line with the Quotation.  The Customer shall ensure that the Materials on the Site/Application comply with the warranties set out at clause 8.3.

11.2 The Customer acknowledges that the Supplier has no control over any content placed on any Site by Visitors and does not purport to monitor the content of any Site.  The Supplier reserves the right to remove content from any Site where it reasonably suspects such content is in breach of the warranties set out at clause 8.3.

11.3 The Supplier may include the statement “Designed and developed by bda. www.thinkbda.com”, together with appropriate copyright notices and other such notices, on any Design(s) and/or any Site.

12. DATA PROTECTION

12.1 If the Supplier is developing a Site for the Customer it will have security measures in place to protect against the loss, misuse, destruction and alteration of data.  However, the Customer accepts that whenever data is released online that data can be collected and used by third parties.  While the Supplier makes reasonable commercial efforts to protect data, it cannot guarantee the security of any information online.  The Supplier shall not be liable in respect of (and disclaims all liability in relation to) any data submitted to a Site which becomes available to third parties other than as intended.

12.2 The Supplier warrants that, to the extent it processes any Personal Data on behalf of the Customer:

(a) it shall act only on instructions from the Customer; and

(b) it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.

12.3 In this clause 12, Personal Data has the meaning given in the Data Protection Act 1998.

13. TERM AND TERMINATION

13.1 Subject to earlier termination pursuant to clauses 13.2 or 13.3, either party may terminate a Contract by giving 1 months’ notice in writing.

13.2 Either party may terminate a Contract immediately at any time by written notice to the other party if:

(a) that other party commits any material breach of its obligations under the Contract which (if remediable) is not remedied within 30 days after the service of written notice specifying the breach and requiring it to be remedied; or

(b) that other party:

(i) ceases to trade (either in whole, or as to any part or division involved in the performance of the Contract); or

(ii) becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party; or

(iii) a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court; or

(iv) the ability of that party’s creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party’s creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or

(v) any process is instituted which could lead to that party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction).

13.3 The Supplier may terminate a Contract at any time in the event that the Customer fails to accept any Design(s) and/or any Site and/or any Application presented by the Supplier pursuant to the Contract after three or more iterations.  Upon termination under this clause 13.3 the Customer shall, at the request of the Supplier, arrange for the return of all drafts, final artwork and other materials provided by the Supplier, and all copies thereof.

13.4 On termination of a Contract all licences granted by the Supplier under the Contract shall terminate immediately.

13.5 On expiry or termination of a Contract, all provisions of the Contract shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.

13.6 Upon termination of any Contract the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and any interest and late payment compensation and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice which shall be payable by the Customer immediately on receipt.

14. FORCE MAJEURE

A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under these Service Conditions shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay will continue.  The affected party shall take reasonable steps to mitigate the effect of the Force Majeure Event.

15. CONFIDENTIALITY

15.1 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.

15.2 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.

15.3 The obligations set out in this clause 15 shall not apply to Confidential Information which the receiving party can demonstrate:

(a) is or has become publicly known other than through breach of this clause 15; or

(b) was in possession of the receiving party prior to disclosure by the other party; or

(c) was received by the receiving party from an independent third party who has full right of disclosure; or

(d) was independently developed by the receiving party; or

(e) was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.

15.4 The obligations of confidentiality in this clause 15 shall not be affected by the expiry or termination of any Contract.

16. NOTICES

16.1 A notice given under these Service Conditions:

(a) shall be in writing in the English language (or be accompanied by a properly prepared translation into English);

(b) shall be sent for the attention of the person, and to the address, fax number or e‑mail address given in the Quotation to which it relates (or such other person, address, fax number or e‑mail address as the receiving party may have notified to the other, such notice to take effect 5 days from the notice being received); and

(c) shall be:

(i) delivered personally; or

(ii) sent by fax or e‑mail; or

(iii) sent by pre‑paid first‑class post, recorded delivery or registered post; or

(iv) (if the notice is to be served or posted outside the country from which it is sent) sent by registered airmail.

16.2 A notice is deemed to have been received:

(a) if delivered personally, at the time of delivery; or

(b) in the case of fax or e‑mail, at the time of transmission, provided a confirmatory copy is sent by first‑class pre‑paid post or by personal delivery before the end of the next Business Day; or

(c) in the case of pre‑paid first class post, recorded delivery or registered post, 48 hours from the date of posting; or

(d) in the case of registered airmail, 5 days from the date of posting; or

(e) if deemed receipt under the previous paragraphs of this clause 16.2 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt), when business next starts in the place of receipt.

16.3 To prove service, it is sufficient to prove that the notice was transmitted by fax to the fax number or e‑mail address of the relevant party or, in the case of post, that the envelope containing the notice was properly addressed and posted.

17. PUBLICITY

All media releases, public announcements and public disclosures by either party relating to a Contract or its subject matter, including promotional or marketing material, shall be co‑ordinated with the other party and approved jointly by the parties prior to release.

18. ASSIGNMENT

18.1 The Supplier may use third party service providers to perform all or any part of any Services.

18.2 The Supplier may assign or transfer any of its rights or obligations under a Contract without the prior written consent of the Customer.  The Customer may assign or transfer any of its rights or obligations under a Contract with the consent of the Supplier, such consent not to be unreasonably withheld or delayed.

19. ENTIRE AGREEMENT

Except as provided in this clause 19, neither party shall have any remedy in respect of a Misrepresentation, and neither party shall have any liability other than pursuant to the express terms of these Service Conditions.  Nothing in these Service Conditions shall exclude or limit either party’s liability for any Misrepresentation made knowing that it was untrue.  Each party’s liability for Misrepresentation as to a fundamental matter, including as to a matter fundamental to that party’s ability to perform its obligations under a Contract, shall be subject to the limit set out in clause 9.6.

20. THIRD PARTY RIGHTS

Each Contract is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person.

21. VARIATION AND WAIVER

21.1 A variation of these Service Conditions shall be in writing and signed by or on behalf of both parties to these Service Conditions.

21.2 A waiver of any right under a Contract is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.  No waiver shall be implied by taking or failing to take any other action.

21.3 Unless specifically provided otherwise, rights arising under these Service Conditions are cumulative and do not exclude rights provided by law.

22. SEVERANCE

22.1 If any provision (or part of a provision) of these Service Conditions is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

22.2 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.

23. NON-SOLICITATION AND NEGATIVE COMMENTS

23.1 The Customer undertakes with the Supplier that, during the term of each Contract and for the period of 6 months following the expiry or termination of each Contract, the Customer shall not (except to the extent that any such actions are required to fulfil the Customer’s obligations at law or under that Contract) without the prior written consent of the Supplier:

(a) make any offer of employment or enter into any discussion or negotiations with a view to making any offer of employment to any person employed by the Supplier during the term of a Contract and with whom it has had personal contact or dealings (Relevant Employee) with that Contract save where such person has been made redundant or otherwise dismissed by the Supplier, or who has resigned from employment of the Supplier and who has responded to an advertisement for employees independently of any solicitation or encouragement to do so by the Customer; or

(b) solicit or attempt to solicit services from any Relevant Employee on their own account or entice or attempt to entice any Relevant Employee away from the Supplier; or

(c) have business dealings with or attempt to have business dealings with any Relevant Employee other than pursuant to a Contract.

23.2 If the Customer breaches its undertaking in clause 23.1 it shall pay liquidated damages to the Supplier.  The amount of such liquidated damages shall be a sum equal to the gross salary of the Relevant Employee in question for the 6 month period (or if he/she was employed for a period of less than 6 months, his/her gross salary for such lesser period) prior to the said breach of undertaking and for the avoidance of doubt the parties agree that the liquidated damages referred to in this clause 23.2 are a genuine pre-estimate of the loss that the Supplier may suffer as a result of the Customer breaching its undertaking given in clause 23.1.

23.3 The Customer agrees not to engage in negative comments, libel or slander regarding the Supplier including, but not limited to, publishing, or causing to be published, complaints or derogatory comments about the Supplier in any format including, but not limited to, print, newspaper, television, radio or on internet complaint sites, blogs or other public internet forums.  Should there be a breach of this clause 23.3 the Supplier will be entitled to liquidated damages in the amount of £5,000 for each publishing or posting.  If the said breach occurs on an internet complaint site each hit to that website will be considered an individual breach of this clause 23.3, and subject to additional liquidated damages of £200 per occurrence.  Further, the Supplier shall be entitled to litigate this matter and obtain money damages together with injunctive and punitive relief.  The prevailing party to that litigation shall be entitled to an award of legal fees.

24. GOVERNING LAW AND JURISDICTION

24.1 These Service Conditions and any disputes or claims arising out of or in connection with their subject matter are governed by and construed in accordance with the law of England.

24.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Service Conditions.