1.1 Some words used in these Service Conditions are capitalised and this means that they have a particular meaning. Those words and their meaning are set out below. The main purpose of doing this is to avoid repetition within the body of the Service Conditions below, making them shorter and easier to read.
Acceptance: as set out in clause 4.
Application: a mobile and/or smart telephone development or application to be developed by BDA pursuant to a Contract.
BDA: ThinkBDA Ltd (trading as BDA), a private limited company with company number 02721714 and which has its registered office at Anvil House, 61-63 Well Street, Buckingham, MK18 1EN.
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, and whether 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 BDA and the Customer from time to time concerning the performance of Services, to which the terms of these Service Conditions will apply.
Customer: the client contracting for Services under these Service Conditions.
Design(s): any design(s) to be supplied to the Customer by BDA 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 as BDA and under the same or similar circumstances and conditions as BDA, seeking in good faith to comply with its contractual obligations and complying with all applicable laws, rules and regulations including codes of practice and conduct in force from time to time relating to type of Services BDA performs.
Intellectual Property Rights: all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application in respect of them), 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 BDA 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 or as the Customer is otherwise directed in writing by BDA.
Provider: Rackspace Limited (company number 03897010) or such replacement third party provider of website hosting services.
Quotation: an indicative written quotation provided by BDA 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. Any such quotation shall constitute an offer by BDA to provide services to the Customer which BDA 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 in-house by BDA as set out in a Quotation.
Site: a website to be developed and/or hosted by BDA pursuant to a Contract.
Third Party Products: any third party products set out in a Quotation which cannot be provided in-house by BDA.
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.
NOTE – the following provisions deal with general rules of interpretation of these terms and certain expressions used within them.
1.2 The clause headings in these Service Conditions 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 words 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 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 (as amended from time to time). 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, BDA shall use the Provider to perform those services and these Service Conditions and the applicable Contract shall necessarily 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 BDA and such terms and conditions shall therefore 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. BDA shall not be liable for any failure to deliver website hosting services caused by BDA's inability to obtain them from the Provider or by BDA's compliance with the Provider's terms and conditions as such matters are beyond BDA's reasonable control. 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 BDA to comply with, all terms of the Provider's terms and conditions to the extent that they apply to the obligations of BDA thereunder so that BDA is able to fulfill its obligations thereunder and so as to avoid any act or omission which causes or contributes to any breach by BDA 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 BDA is reselling;
- (b) if BDA 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
NOTE – this clause 2 sets out our obligations to you.
2.1 From the Effective Date BDA 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 and any specific details in a Quotation, continue to be supplied until the Services in respect of any particular Contract are completed in accordance with the applicable Quotation.
2.3 BDA 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 BDA 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 BDA shall not be of the essence of these Service Conditions or any Contract. NOTE – as time for performance by us is not of the essence, should we fail to meet any performance date you will not be able to rely upon this to terminate any contract you have with us.
2.5 Where Services include website hosting services, BDA 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, despite efforts to mitigate the risk of the following occurring, could result in the loss of the Customer's privacy, information, property, data and other consequences.
3. Customer Responsibilities
NOTE – this clause 3 sets out your obligations to us.
3.1 The Customer acknowledges that BDA's ability to provide Services may be 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 BDA. Accordingly, the Customer shall provide BDA with timely access to, and use of, all information, data, documentation, content and Materials reasonably required by BDA for the performance by BDA 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 to its reasonable satisfaction and compliant with relevant legislation and regulations which affects its business and which it should reasonably be aware of.
3.4 BDA relies upon the fact that the Customer is best placed to know about its business and accordingly 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.
4.1 Acceptance of any Design(s) and/or any Site and/or any Application submitted by BDA to the Customer 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 BDA 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
To ensure the smooth management of any Services to be provided by BDA, 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 BDA shall issue VAT invoices in respect of any Charges and any Fees in accordance with the corresponding Quotation, and the Customer shall pay to BDA the Charges and/or Fees set out in such invoices within 30 days of the date of the invoices.
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, BDA shall be entitled, but not obliged, to charge the Customer interest on the overdue amount. Such interest, if charged, 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 (as BDA's bankers). Such interest shall accrue on a daily basis and be compounded quarterly. As it is entitled to do so to protect itself against bad debts, BDA also reserves the right to claim interest (which is at 8% above the bank of England's base rate) 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 BDA's written notice to do so, BDA shall be entitled to suspend Services without liability so as to mitigate its potential losses 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 permitted by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against BDA in order to justify withholding payment of any such amount in whole or in part. However, in order to protect itself against bad debts, BDA may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by BDA to the Customer.
NOTE – a warranty is a contractual assurance or promise, the breach of which may give rise to a claim in damages.
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 BDA 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 BDA that:
- (a) the Customer will indemnify BDA against all indirect and/or direct costs, claims, damages, losses, expenses and liabilities suffered or incurred by BDA as a result of the undertakings and warranties provided in this clause 8.3 being breached by it; NOTE – an indemnity is an undertaking by one party to meet a specific legal liability of another and entitles the indemnified party to payment if the event giving rise to the indemnity takes place. We consider this indemnity to be reasonable because it only takes effect on you breaching one of the undertakings or warranties which you provide to us, with all such matters being within your reasonable control.
- (b) the Materials and/or any information supplied by the Customer to BDA are accurate, complete and true in all material respects;
- (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 or has reasonably satisfied itself that no such authority is lawfully required;
- (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 BDA's and the Customer's obligations and liabilities in respect of the supply of Services by BDA. 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 to the fullest extent permitted by law.
9. Limitation of Remedies and Liability
YOUR ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 9 BELOW SINCE IT DEALS WITH US LIMITING OUR LIABILITY TO YOU.
Note – as with any supplier of services, limitation of liability is a key issue for us and we wish to restrict our liability so far as reasonably possible. That said, we appreciate that, should we fail to provide services to a standard which a customer should reasonably be able to expect of us, then the potential damage to the customer may exceed the cost of engaging us to provide those services. Below we have capped our liability to you at 50% of the charges we may charge you for performing services. In arriving at this figure, we have taken account of the need to protect our business together with the need for our customers to have suitable recourse against us. Limiting our liability in this way also allows us to limit our charges to customers to the competitive prices that we levy since, without this limitation, our charges would need to increase to cover additional insurance costs which we would suffer were our liability not limited in this way or to otherwise allow us to accept an increased risk to our business.
9.1 The Customer will be classed as a business customer unless the Customer indicates in writing to BDA that Services provided by BDA will not be used in the course of the Customer's business. NOTE – as the parties are dealing with each other in the course of their respective businesses, rules protecting consumers will not apply.
9.2 Nothing in these Service Conditions shall operate to exclude or limit BDA'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.
NOTE – the above are matters which we are not legally able to exclude or limit our liability for and hence we do not seek to do so.
9.3 BDA 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 BDA has been advised by the Customer, or should have reasonably been aware, of the possibility of such damage or loss.
9.4 BDA 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, BDA'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 BDA 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 BDA 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
NOTE – we recognise that you are paying us for a service and that you should be entitled to freely use the results of what we produce for you. The below suitably ensures that you are entitled to freely use the results of what we produce for you.
10.1 All Intellectual Property Rights in any Design(s) and/or any Site and/or any Application (including any pre-existing software used by BDA in creating the Site/Application together with any “Personal URL (PURL)” technology) arising in connection with a Contract shall remain the property of BDA and its licensors, excluding the Materials.
10.2 Subject to receipt of any Charges and Fees by BDA when due, in relation to the Intellectual Property Rights in any Design(s) and/or any Site and/or any Application (including any pre-existing software used by BDA in creating the Site/Application together with any “Personal URL (PURL)” technology) arising in connection with a Contract, BDA grants to the Customer, or shall procure the direct grant to the Customer, a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual, irrevocable and assignable licence to use such Intellectual Property Rights for the Permitted Uses.
10.3 The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Materials.
10.4 The Customer grants BDA a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Materials for the term of a Contract for the purpose of providing Services to the Customer.
10.5 The Customer shall indemnify BDA 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.
10.6 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 BDA.
11.1 If specified in a Quotation, BDA 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 BDA 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 BDA has no control over any content placed on any Site by Visitors and does not purport to monitor the content of any Site. BDA 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 BDA 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 BDA 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 BDA makes reasonable commercial efforts to protect data, it cannot guarantee the security of any information online. BDA 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 Where BDA acts as a data controller (as defined in the General Data Protection Regulation ((EU) 2016/679) or any successor legislation to it) pursuant to a Contract, it shall do so in accordance with its privacy notice. BDA's privacy notice is available on request and may also be viewed on its website at www.thinkBDA.com. BDA's privacy notice shall be deemed to be incorporated into a Contract.
12.3 Where BDA acts as a data processor (as defined in the General Data Protection Regulation ((EU) 2016/679) or any successor legislation to it) pursuant to a Contract, it shall do so in accordance with its processing terms. BDA's processing terms are available on request and may also be viewed on its website at www.thinkBDA.com. BDA's processing terms shall be deemed to be incorporated into a Contract.
13. Termination and Term
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. NOTE – we have no wish to unreasonably deny you the right to terminate your relationship with us on notice and this clause gives you that right.
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 BDA may terminate a Contract at any time in the event that the Customer unreasonably fails to accept any Design(s) and/or any Site and/or any Application presented by BDA pursuant to the Contract after three or more iterations. Upon termination under this clause 13.3 the Customer shall, at the request of BDA, arrange for the return of all drafts, final artwork and other materials provided by BDA, and all copies thereof.
13.4 On termination of a Contract any non-perpetual licences granted by BDA 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 BDA all of BDA'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, BDA shall submit an invoice which shall be payable by the Customer immediately on receipt.
14. Force Majeure
If either party 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 then they shall forthwith notify the other of this 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.
NOTE – this clause sets out the confidentiality obligations of both parties and is designed to achieve a reasonably balanced approach to the issue of 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.
16.1 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.
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.
18.1 BDA may use third party service providers to perform all or any part of any Services.
18.2 Either party may assign or transfer any of its rights or obligations under a Contract with the written consent of the other party, 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 and that limit shall, for the purposes of this clause 19, apply to both BDA and the Customer.
20. Third Party Rights
Each Contract is made for the benefit of BDA and the Customer as 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.
22.1 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
NOTE – our employees and our reputation are very important to our business. In respect of our employees, we invest in their training and ongoing development and hence would suffer harm in the event that they were solicited away from us by a customer. In respect of our reputation, whilst we do not object to third parties stating accurate facts and genuinely held opinions, we do object to them making defamatory comments about us. The provisions below are intended to protect us from employees being solicited away from us and to protect our reputation from illegitimate harm.
23.1 The Customer undertakes with BDA 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 fulfill the Customer's obligations at law or under that Contract) without the prior written consent of BDA:
- (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 BDA during the term of a Contract and with whom it has had personal contact or dealings (referred to below as a Relevant Employee) with that Contract save where such person has been made redundant or otherwise dismissed by BDA, or who has resigned from employment of BDA 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 BDA; 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 BDA (being damages which are designed as a genuine pre-estimate of the loss BDA will suffer in the event of such a breach). 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 BDA 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 BDA including, but not limited to, publishing, or causing to be published, complaints or derogatory comments about BDA 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 BDA will 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.
The Customer accepts the Service Conditions contained within this document by signing below, by accepting them electronically, by accepting them in writing, and/or by accepting delivery of Services following these Service Conditions having been brought to the Customer's reasonable attention. In the event of signature of these Service Conditions they may be signed in counterparts which taken together shall be considered one original and facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format) and electronic signatures shall be deemed to be original signatures.