1. Contract Definitions
Accounting Feed – means the transactional level detail which is extracted from various accounting packages in order to perform the services defined in Schedule 1.
Agreement – means the attached letter, the terms and conditions contained in this Schedule and the other Schedules attached to the letter.
Applicable Laws – means any laws, regulations, regulatory policies, guidelines or industry codes which apply to the provision of the Services in accordance with the law of England & Wales.
Business Day – means any day on which the clearing banks are open for business in the City of London (but not a Saturday or a Sunday)
Charges – means any amounts to be paid to the Service Provider by the Client in respect of this Agreement as stated in Schedule 1.
Client Services Team – means the team, employed by the Service Provider, who has been designated to act as the primary customer contact point for the Client in respect of any queries or issues relating to the delivery of the Services as outlined in this Agreement.
Commencement Date – means the date set out in the letter to which these terms and conditions are attached.
Confidential Information – means all identifiable methodology, know-how, experience, data, databases, flow charts, reports, tables or other material produced in relation to this Agreement (including the negotiations leading to it) and any other information of whatever kind (whether commercial, technical, operational or otherwise, whether communicated verbally, in writing or in any other form and whether or not expressly stated to be confidential) relating to a party (including but not limited to) its business, products, suppliers and customers and unless the context otherwise requires, the expression “Confidential Information” shall also include any modification (whether authorised or otherwise) made to any of the above-mentioned information by the Service Provider or any person to whom it has disclosed that information including without limitation any information which:
• Is marked as or has been otherwise indicated to be confidential: or
• Would be regarded as confidential by a reasonable business person.
Consents – means all permissions, consents, approvals, certificates, permits, licences, agreements and authorities (whether statutory, regulatory, contractual or otherwise) necessary for the provision of the Services.
Control – In relation to a corporate body means the power of a person (or persons acting in concert with them) to secure directly or indirectly that the affairs of that body are conducted in accordance with the wishes of that person (and any persons acting in concert with them) whether by means of the exercise of voting power or any other contractual right, or otherwise.
Client Data – means all data, information, text, drawings, diagrams or images embodied in any electronic or tangible medium which;
• Is supplied to or in respect of which access is granted to the Service Provider by the Client in relation to this Agreement; of
• Which the Service Provider is required to update or generate under this Agreement.
Data Protection Legislation – all applicable privacy and data protection laws including the General Data Protection Regulation ((EU) 2016/679) and any applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426).
Demand – means the action, award, claim or other legal recourse, complaint, cost, debt, demand, expense, fine, liability, loss, outgoing, penalty and proceedings.
Disaster Recovery Plan – means the contingency plans and business continuity management procedures agreed with the Client from time to time to cover all main areas of potential disruption to the Services or those parts of the Service Provider’s business which affects the provision of the Services, having reference at all times to the relevant parts of the Client’s own such plans and procedures.
Employees – all employees, staff, other workers, agents and consultants who are engaged in the provision of the Services.
Force Majeure Event – means any cause affecting the performance of a party of its obligations under this Agreement arising from acts, events, omissions or non-events beyond its reasonable control including without limitation the following:-
• War or terrorist activity; or
• Civil commotion; or
• Nuclear accident or act of God (including flood or lightning); or
• Fire or serious explosion (other than where caused by the negligence or wilful default of the party seeking to claim a Force Majeure Event); or
• Pandemic; or
• Strikes or industrial disputes, other than strikes or Industrial disputes involving personnel of the Service Provider or any of its agents or sub-contractors.
Intellectual Property Rights – means all patents, trademarks, service marks, designs, utility models, copyright, database rights, semi-conductor topography rights, inventions, trade secrets and other confidential information, know-how, business names and all other intellectual property rights of a similar nature in any part of the world, whether registered, registerable or not and including all applications and the right to apply for any of the foregoing rights and the right to sue for past infringements of any of the foregoing rights.
Introduction Discount – the reduction in standard charges offered to the client during the Introduction Period.
Introduction Period – means the 28 days following the Commencement date when the products and services outlined in Schedule 1 will be provided to the client free of charge.
Period – means any one of a series of consecutive periods of four weeks to coincide with the Clients accounting periods; and “Periodic” and “Periodically” shall be construed accordingly.
Data Breach – means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, data transmitted, stored or otherwise processed.
Primary Client Contact – means the individual, employed by the Client, who has been designated to act as the primary contact point for the Service Provider in respect to any queries or issues relating to the delivery of the Services as outlined in this Agreement.
Services – means the products and services to be performed by or on behalf of the Service Provider pursuant to this Agreement including without limitation those referred to in Schedule 1.
Service Level – means the required levels of performance from the Service Provider as agreed with the Client in line with the Services detailed in Schedule 1.
Subsidiary – means a subsidiary within the meaning ascribed to that expressed by section 1159 of the Companies Act 2006.
VFD Pro Models – means each Forecast Model you access via the VFD Pro portal.
Year – means the period of twelve (12) months commencing on the Commencement Date and each subsequent period of twelve (12) months thereafter.
2. Term of the Agreement
2.1 This Agreement shall, or shall be deemed to take effect from the Commencement Date and (unless terminated earlier in accordance with any provision for earlier termination set out in this Agreement) shall continue until terminated in accordance with the provisions of this Agreement when it shall be terminated with 30 days notice by either party.
3.1 The Service Provider shall at all times perform the Services and comply with its obligations:-
3.1.1 in accordance with Good Industry Practice
3.1.2 in accordance with all Applicable Laws
3.1.3 in a proper, skilful and business-like manner taking all reasonable care and acting with all due diligence and observing all lawful instructions given by the Client which are consistent with the Service Provider’s obligations under this Agreement; and
3.1.4 in a timely manner
3.2 The Service Provider shall
3.2.1 allocate sufficient resource to provide the Services in accordance with the terms of this Agreement
3.2.2 comply with and shall ensure that its authorised sub-contractors will comply with all the Client’s Policies
4. Payment and Interest
4.1 Subject to the proper performance of the Services the Client shall pay the Charges to the Service Provider in accordance with the terms and conditions of this Agreement. The Charges are fixed for the duration of one year (as defined in Schedule 1). Thereafter the Service Provider reserves the right to increase its Charges for future time periods.
4.2 Any Introduction Discounts awarded will cease to be applied one year after the commencement date and the Client will revert to the Standard Package rate as outlined in Schedule 1.
4.3 The Service Provider shall be entitled to invoice the Client for the Charges on the 1st or 15th of each month. Save where expressly agreed otherwise in this Agreement, payment of any amounts properly due to the Service Provider shall be made to the Service Provider either immediately via automated electronic transfer or within seven (7) days of receipt by the Client of a valid undisputed invoice.
4.4 All Charges are exclusive of VAT and any other applicable tax and payments shall be made in GB pounds sterling. All invoices submitted by the Service Provider shall be sent to the Client in accordance with the Client’s invoicing guidelines in place as notified to the Service Provider from time to time. All invoices shall be sent via the e-mail addresses notified to the Service Provider by the Client from time to time.
4.5 If the Client fails to pay any amount payable when it is due in respect of any undisputed invoice under this Agreement, the Service Provider shall be entitled but not obliged to charge the Client interest on the overdue amount from the due date up to the date of actual payment, after as well as before judgment, at the rate of two percent per annum above the Bank of England base rate for the time. Such interest shall accrue on a daily basis and be compounded quarterly.
4.6 The Client expressly reserves the right to reasonably withhold payment of any Charges which have not been invoiced in accordance with this Agreement or which relate to, or purport to relate to, Services which have not been provided or which have been provided otherwise than in accordance with this Agreement.
4.7 If the Client receives an invoice which it reasonably believes includes a sum which is not valid and properly due:
4.7.1 the Client shall notify the Service Provider in writing by e-mail as soon as reasonably practicable;
4.7.2 the Client’s failure to pay the disputed Charges shall not be deemed to be a breach of this Agreement and shall not entitle the Service Provider to suspend the Services in any circumstances;
4.7.3 the Client shall pay the balance of the invoice which is not in dispute by the due date; and
4.7.4 once the dispute has been resolved, where either party is required to make a balancing payment, it shall do so within seven (7) Business Days and, where the Service Provider is required to issue a credit note, it shall do so within seven (7) Business Days
4.8 The Charges represent the full amount payable by the Client in relation to the Services and the Service Provider acknowledges that the Client shall not be liable for, and holds the Client harmless against, any other fees, costs or charges in relation to the Services.
5. VFD Pro Models
5.1 All VFD Pro models are covered by a local copyright and remain the property of the Service Provider throughout the duration of this and any subsequent contracts and following any termination or expiry of this Agreement.
5.2 Where the Client has any issue in relation to any model produced by the Service Provider the Client may, without limitation to any other right or remedy, contact the Service Provider and the Service Provider shall ensure that it responds to all such enquiries and action appropriate responses promptly and in any case the Service Provider shall ensure that it complies with the timescales for fault acknowledgement and resolution set out in this Agreement.
6.1 Following the completion of the Introduction Period of this Agreement, either party shall be entitled to terminate this Agreement at any time by providing the other party with at least thirty (30) days written notice of their intention.
6.2 Either party shall be entitled to terminate this Agreement immediately by serving written notice to the effect on the other party if at any time any one or more of the following events occurs:
6.2.1 Either party becomes aware that the Control of the other party or any Holding Company of the other party has passed to any other person or persons, other than the person or persons in Control of the other party at the date of this Agreement except where such Control passes as part of a bona fide intra-group re-organisation; or
6.2.2 Either party commits a breach of any Applicable Law; or
6.2.3 In the sole opinion of either party, continued association with the other party would contravene the original parties’ policies; or
6.2.4 If there is a delay or failure in performance of any obligation under this Agreement due to a Force Majeure Event that continues for more than thirty (30) days; or
6.2.5 The other party makes a voluntary arrangement with its creditors or enters administration or goes into liquidation; or
6.2.6 A security holder takes possession, or a receiver or administrative receiver is appointed, over all or any part of the property or assets of the other party; or
6.2.6 Anything analogous to any of the foregoing occurs to the other party under the law of any jurisdiction; or
6.2.8 The other party ceases, or threatens to cease, carrying on the business; or
6.2.9 The other party commits a material breach of any of the provisions of this Agreement and in the case of a breach capable of remedy, fails to remedy the same within thirty (30) days (or, where the Service Provider has committed the relevant material breach, such other period as the Client reasonably thinks fit) after being served with a written notice specifying the breach and requiring it to be remedied.
7. Consequences of Termination
7.1 Upon termination of this Agreement all rights and obligations under this Agreement, including all rights and licences granted to either party, will automatically terminate provided that any such termination shall be without prejudice to any other remedies a party may be entitled to under the Agreement or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provisions of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
7.2 Upon termination or expiry of this Agreement (for any reason whatsoever) the Service Provider shall:
7.2.1 It is the responsibility of the Client to ensure that all connections within their VFD Pro portal have been terminated.
7.3 The Service Provider shall use all reasonable endeavours up to (and including) the relevant date of expiry or termination of this Agreement (in whole or in part) to ensure transition impact on the Services is minimal in transferring the provision of all or part of the Services to the Client or any replacement service provider. For the avoidance of doubt and unless otherwise agreed, the Service Provider shall remain obliged to provide those Services to be terminated to the levels set out in this Agreement until the relevant date of expiry or termination.
8.1 The Service Provider shall:
8.1.1 Keep confidential all of the Client’s Confidential Information and not use it except for the purposes of exercising or performing its rights and obligations under this Agreement. The Service Provider may disclose the Client’s Confidential Information to its employees, officers, professional representatives or advisers, sub-contractors and agents, provided that such persons need to know it for the purposes of exercising or performing the Service Provider’s rights and obligations under this Agreement.
8.1.2 Ensure that each person to whom Confidential Information is to be disclosed is made aware of and observes the terms of this Clause 8 as if the person has given the undertaking contained in the Clause 8 directly.
8.1.3 Where the Client’s data is used for benchmarking purposes, ensure that all data is completely anonymised; and
8.1.4 Not disclose the Client’s Confidential Information to any third party or use it except as otherwise permitted in the Agreement.
8.2 The terms of this Clause shall continue to apply notwithstanding termination of this Agreement or any cessation of any business relationship between the parties.
8.3 The provisions of Clause 8.1 above shall not apply to any Confidential Information to the extent that such Confidential Information:
8.3.1 Is publicly available or becomes publicly available through no act or omission of the Service Provider;
8.3.2 Was created independently by the Service Provider prior to the date of this Agreement as demonstrated by documentary evidence to the reasonable satisfaction of the Client; or
8.3.3 Is required to be disclosed by law or by order of a court of competent jurisdiction or other competent authority including, but not limited to, the Financial Conduct Authority, the Stock Exchange or the Panel on Takeovers and Mergers provided that (to the extent it is permitted to do so) the Service Provider gives all reasonable notice of that disclosure to the Client.
9.1 No public or press announcements shall be made with regard to the subject matter of this Agreement unless the text of such an announcement is first approved and initialled by both parties.
10. Force Majeure
10.1 If a party’s performance under this Agreement or any obligations arising hereunder is prevented by reason of any, or any combination of, Force Majeure Events, that party shall be entitled to relief from performing such obligations(s) for the period specified in Clause 10.2
10.2 For the purpose of Clause 10 the period in respect of which either party may claim relief from performance of any of its obligations due to a Force Majeure Event shall be the period during which the party is prevented from complying with such obligation(s) PROVIDED THAT the party shall not be entitled to claim such relief in respect of any period during which:
10.2.1 It could have complied with such obligation(s) (or any part thereof) by using its reasonable endeavours (which includes allocation of internal resources, and in the case of the Service Provider, the implementation of the disaster recovery arrangements referred to in Clause 15) to avoid, overcome or minimise wholly or partly the effects of the Force Majeure Event upon the performance of its obligations under this Agreement; or
10.2.2 It fails to notify the other party as soon as reasonably practicable of the occurrence of the Force Majeure Event, the obligations which as a result the party is unable to perform, the party’s estimate of the date on which performance of the obligations is likely to resume, and the steps that the party is talking to minimise the impact upon the other party.
10.3 The Service Provider will remain responsible for any failure, either wholly or in part, to perform its obligations under this Agreement, or for delay in performing such obligations, if the failure or delay is caused by strikes or industrial disputes of its employees, agents or sub-contractors.
11. Client Data
11.1 The Service Provider acknowledges that the Client Data is the property of the Client. The Client reserves all Intellectual Property Rights which may at any time subsist in relation to the Client Data. The Service Provider retains the Intellectual Property Rights for all models and information created within the duration of this Agreement and models or information that existed prior to the Commencement Date of this Agreement.
11.2 The Service Provider shall:
11.2.1 Preserve, so far as possible, the integrity of the Client Data and prevent any loss, disclosure, theft, manipulation or interception of the Client Data
11.2.2 Make secure back-up copies of the Client Data on such regular basis as is reasonable for the particular data concerned as required by the Disaster Recovery plan or as otherwise instructed by the Client; and
11.2.3 Immediately notify the Client if any of the Client Data is lost, becomes corrupted, is damaged or is deleted accidentally.
11.3 The Client hereby grants the Service Provider, for the duration of this Agreement, a non-exclusive, non-transferable, royalty-free licence to use its data solely for the purpose of meeting, and to the extent necessary to meet, its obligations under this Agreement.
11.4 On receipt or creation by the Service Provider of any Client Data and during any collection, processing, storage and transmission by the Service Provider of any Client Data, the Service Provider shall take, and shall procure that each of its employees, agents, officers, and authorised sub-contractors shall take, all precautions necessary to preserve the security and integrity of the Client’s Data and to prevent any corruption or loss of the Client Data.
12. Data Protection
12.1 The Service Provider acknowledges and agrees that it shall be acting as a data processor in relation to the performance of the Services.
12.2 The Service Provider shall perform the Services and its obligations pursuant to this Agreement in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments (including the Data Protection Legislation 1998)
12.3 The Service Provider shall immediately notify the Client of any complaint, notice, regulatory investigation or communication which relates directly or indirectly to either party’s compliance with the Data Protection Legislation and the Service Provider shall provide the Client with full co-operation and assistance in relation to any regulatory investigation related to its activities pursuant to this Agreement and any such complaint, notice, regulatory investigation or communication.
12.4 Personal data types and processing purposes
12.4.1 The Client and the Service Provider acknowledge that for the purpose of the Data Protection Legislation, the Client is the controller and the Service Provider is the processor.
12.4.2 The Client retains control of the Personal Data and remains responsible for its compliance obligations under the applicable Data Protection Legislation in respect of providing any required notices and obtaining any required consents, and for the processing instructions it gives to the Service Provider.
12.5 Service provider’s obligations
12.5.1 The Service provider will only process the Accounting Feed, and in such a manner, as is necessary for the business purposes in accordance with Company’s written instructions from Authorised Persons. The Service provider will not process the Accounting Feed for any other purpose or in a way that does not comply with this Agreement or the Data Protection Legislation. The Service provider must promptly notify the Company if, in its opinion, the Company’s instruction would not comply with the Data Protection Legislation.
12.5.2 The Service provider must promptly comply with any request or instruction from Authorised Persons requiring the Service provider to amend, transfer, delete or otherwise process the Personal Data, or to stop, mitigate or remedy any unauthorised processing.
12.5.3 The Service provider will maintain the confidentiality of all Personal Data and will not disclose Personal Data to third parties unless the Company or this Agreement specifically authorises the disclosure, or as required by law. If a law, court, regulator or supervisory authority requires the Service provider to process or disclose Personal Data, the Service provider must first inform the Company of the legal or regulatory requirement and give the Company an opportunity to object or challenge the requirement, unless the law prohibits such notice.
12.5.4 The Service provider will provide all the required assistance to the Company to enable it with meeting the Company’s compliance obligations under the Data Protection Legislation, taking into account the nature of the Service provider’s processing and the information available to the Service provider, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with supervisory authorities under the Data Protection Legislation.
12.5.5 The Service provider will only collect Personal Data for the Company using a notice or method that the Company specifically pre-approves in writing, which contains an approved data privacy notice informing the Data Subject of the Company’s identity, the purpose or purposes for which their Personal Data will be processed, and any other information that, having regard to the specific circumstances of the collection and expected processing, is required to enable fair processing. The Service provider will not modify or alter the notice in any way without the Company’s prior written consent.
12.6 Service provider’s employees
12.6.1 The Service provider will ensure that all employees are informed of the confidential nature of the Personal Data and are bound by confidentiality obligations and use restrictions in respect of the Personal Data, have undertaken training on the Data Protection Legislation relating to handling Personal Data and how it applies to their particular duties and are aware both of the Service provider’s duties and their personal duties and obligations under the Data Protection Legislation and this Agreement.
12.7.1 The Service provider must at all times implement appropriate technical and organisational measures against unauthorised or unlawful processing, access, disclosure, copying, modification, storage, reproduction, display or distribution of Personal Data, and against accidental or unlawful loss, destruction, alteration, disclosure or damage of Personal Data.
12.7.2 The Service provider must implement such measures to ensure a level of security appropriate to the risk involved.
12.8 Data Breach
12.8.1 The Service provider will promptly and without undue delay notify the Company if any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable.
12.8.2 The Service provider will within 35 hours and without undue delay notify the Company if it becomes aware of any accidental, unauthorised or unlawful processing of the Personal Data or any Data Breach.
12.8.3 Where the Service provider becomes aware of (a) and/or (b) above, it shall, without undue delay, also provide the Company with the following information:
a) description of the nature of (a) and/or (b), including the categories and approximate number of both Data Subjects and Personal Data records concerned;
b) the likely consequences; and
c) description of the measures taken or proposed to be taken to address (a) and/or (b), including measures to mitigate its possible adverse effects.
12.8.4 Immediately following any unauthorised or unlawful Personal Data processing or Data Breach, the parties will co-ordinate with each other to investigate the matter. The Service provider will co-operate with the Company in the Companies handling of the matter, including:
a) assisting with any investigation;
b) providing the Company with physical access to any facilities and operations affected;
c) facilitating interviews with the Service provider’s employees, former employees and others involved in the matter;
d) making available all relevant records, logs, files, data reporting and other materials required to comply with all Data Protection Legislation or as otherwise reasonably required by the Company; and
e) taking reasonable and prompt steps to mitigate the effects and to minimise any damage resulting from the Data Breach or unlawful Personal Data processing.
12.8.5 The Service provider will not inform any third party of any Data Breach without first obtaining the Company’s prior written consent, except when required to do so by law.
12.9 Complaints, data subject requests and third party rights
12.9.1 The Service provider must notify the Company immediately if it receives any complaint, notice or communication that relates directly or indirectly to the processing of the Personal Data or to either party’s compliance with the Data Protection Legislation.
12.9.2 The Service provider must notify the Company within 1 working day if it receives a request from a Data Subject for access to their Personal Data or to exercise any of their related rights under the Data Protection Legislation.
12.9.3 The Service provider will give the Company its full co-operation and assistance in responding to any complaint, notice, communication or Data Subject request.
12.9.4 The Service provider must not disclose the Personal Data to any Data Subject or to a third party other than at the Company’s request or instruction, as provided for in this Agreement or as required by law.
13. Intellectual Property
13.1 The Service Provider retains the Intellectual Property Rights and all other rights in the products of the Services created by the Service Provider or any employee, agent or authorised sub-contractor of the Service Provider during the performance of the Services.
13.2 Neither party acquires any rights to the other party’s Intellectual Property Rights under this Agreement except the limited rights necessary to perform its obligations under this Agreement.
14. Applicable Laws
14.1 The Service Provider will at all times comply with all Applicable Laws in England and Wales
14.2 The Service Provider will maintain such records as are necessary pursuant to the Applicable Laws and also maintain such records as are necessary to enable the Service Provider to demonstrate compliance with the Applicable Laws.
14.3 Both parties shall:
14.3.1 Comply with all Applicable Laws, statutes, regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010.
14.3.2 Not engage in any activity, practice or conduct which would constitute an offence under sections 1,2 or 5 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
14.3.3 Promptly report to the Client any request or demand for any undue financial or other advantage of any kind received by the Service Provider in connection with the performance of this Agreement;
14.3.4 The Service Provider shall ensure that any person associated with the Service Provider who is performing services or providing goods in connection with this Agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Service Provider in this Clause 14 (“Relevant Terms”)
14.4 Breach of Clause 14 shall be deemed a material breach of this Agreement which is incapable of remedy.
14.5 For the purpose of Clause 14 the meaning of adequate procedures shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of the Act), sections 5(5) and 5(5) of that Act and section 8 of that Act respectively. For the purpose of this Clause 14 a person associated with the Service Provider includes but is not limited to any sub-contractor of the Service Provider.
15. Disaster Recovery and Business Continuity
15.1 The Service Provider shall maintain, test and update the Disaster Recovery and Business Continuity Plan so as to ensure that it is able to implement the provision of such a plan at any time in accordance with its terms to ensure the continuity provision of the Service in accordance with this Agreement at all times.
15.2 The Service Provider will review and update the Disaster Recovery and Business Continuity Plan every twelve (12) months to ensure that it is accurate and up to date, and shall continue to do so throughout the duration of this Agreement.
16.1 The Service Provider shall not sub-contract or otherwise delegate:
16.1.1 The whole or substantially the whole of the Services
16.1.2 A significant or material part of the Services where to do so will or is reasonably likely to have an adverse impact on the provision of the Services
16.2 The Service Provider will not in any way be relieved of any of its obligations under this Agreement by entering into any sub-contract for the performance of any part of this Agreement and the Service Provider will at all times remain primarily responsible and solely liable to the Client for the performance of its obligations under this Agreement and for the acts, errors or omissions of any of its sub-contractors.
17. The Contract (Rights of Third Parties) Act 1799
17.1 Subject to Clause 17.2, this Agreement does not confer any rights on any person or party (other than the parties to this Agreement) under the Contracts (Rights of Third Parties) Act 1799.
17.2 In accordance with section 1 on the Contracts (Rights of Third Parties) Act 1799, a member of the Client’s organisation shall be entitled to enforce all of the rights and benefits under this Agreement at all times as if it were a party to this Agreement.
17.3 The consent of the member of the Client’s organisation is not required for any rescission or variation of this Agreement agreed to by the Client and the Service Provider, or any termination of this Agreement by the Client and/or the Service Provider.
18.1 Any notice or consent required or permitted under this Agreement shall be in writing and shall be sent by e-mail, fax, pre-paid first class recorded delivery or hand delivered. Any such notice, consent or other document shall be deemed to have been duly received:
18.1.1 If dispatched by e-mail or fax – twenty-four (24) hours after the time of the dispatch; or
18.1.2 If dispatched by first class recorded delivery – forty-eight (48) hours from the time of posting to the relevant party; or
18.1.3 If dispatched by hand delivery – at the time of actual delivery,
18.1.4 Provided in each case that if the deemed receipt time occurs either on a day that is not a Business Day or after 17:00 on a Business Day, then the notice, consent or other document shall not in fact be deemed to have been received until 10:00 on the next following Business Day (such times being local time at the address of the recipient).
18.1.5 Unless otherwise notified by one party to the other in writing from time to time, for the purposes of this Clause the postal addresses of each party are as follows:
The Service Provider:
VFD Pro Ltd
20-22 Wenlock Road
18.2 In providing service by post it will be sufficient (unless any relevant part of the postal service is affected by industrial action) to prove that the envelope containing the notice was duly stamped addressed and posted to the addresses specified in Clause 18.1 above.
18.3 A party shall not attempt to prevent or delay the service on it of a notice under this Agreement.
19. Entire Agreement
19.1 This Agreement shall constitute the entire agreement and understanding between the two parties with respect to all matters which are referred to in it and the subject matter of it and shall supersede any previous agreement(s), prior drafts, undertakings, representations, warranties and arrangements or any nature whatsoever (whether or not in writing) between the parties or between the Service Provider and any member of the Client’s organisation in connection with the subject matter of this Agreement.
19.2 Each of the parties acknowledges and agrees that it has not been induced to enter into this Agreement, and in connection with this Agreement does not have any remedy and waives all rights in respect of, any warranty, representation, statement, agreement or undertaking of any nature whatsoever other than as expressly set out in this Agreement.
19.3 Nothing in this Agreement shall operate to limit or exclude any liability for any fraudulent misrepresentation or for any other matter in respect of which liability cannot lawfully be limited or excluded.
20.1 No delay or failure on the part of either party in enforcing any provision in this Agreement shall be deemed to operate as a waiver or create a precedent or in any way prejudice that party’s rights under this Agreement, nor shall any single or partial exercise of any rights or remedy.
20.2 The rights and remedies provided in this Agreement are cumulative and are additional to any rights or remedies provided by law.
21. No Exclusivity
21.1 The Service Provider acknowledges it is appointed to perform the Services on a non-exclusive basis for the duration of this Agreement.
22.1 If any provision in this Agreement is declared void or unenforceable by any court or other body of competent jurisdiction, or is otherwise rendered so by an Applicable Law, that provision shall to the extent of such invalidity or unenforceability be deemed severable and all other provisions of this Agreement not affected by such invalidity or unenforceability shall remain in full force and effect.
22.2 If any provision in this Agreement is so found to be invalid or unenforceable but would be if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid and enforceable.
22.3 The parties agree, in the circumstances referred to in Clause 22.1 and if Clause 22.2 does not apply, to attempt to substitute for any invalid or unenforceable provision a valid and enforceable provision which achieves to the greatest extent possible the same commercial effect as would have been achieved by the invalid or unenforceable provision.
23. Variation and Counterparts
23.1 No variations of this Agreement shall be valid unless made in writing and signed by an authorised representative of each party
23.2 This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same Agreement and any party may enter into this Agreement by executing any such counterpart.
24. Governing law and jurisdiction
24.1 This Agreement shall be governed by and construed in accordance with the law of England & Wales.
24.2 Each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England and Wales over any claim or matter arising under or in connection with this Agreement or the legal relationships established by this Agreement.
24.3 In the event of any dispute or difference arising between the parties in connection with this Agreement the parties will seek in good faith to resolve any such dispute by negotiation without recourse to court proceedings in the manner provided for in this Clause 24. The Client Services Manager of the Service Provider (who shall have authority to settle any such dispute) and the Primary Client Contact shall, within five (5) days of a written request from either party to the other, meet in a good faith effort to resolve the dispute.
24.4 If the Client Services Manager of the Service Provider and the Primary Client Contact fail to reach agreement in negotiations within fifteen (15) days of the initial meeting between them then the dispute shall be referred to the Sales Director of the Service Provider and the Business Owner of the Client in accordance with Clause 24.5.
24.5 In the event of the dispute being referred to the Owner(s) of the Client and the Director(s) of the Service Provider pursuant to Clause 24.4, such persons shall, within fifteen (15) days of such referral, meet in a good faith effort to resolve the dispute. In the absence of agreement within fourteen (14) days of their initial meeting the dispute shall be referred by either party to the English Courts.
24.5 If there is any dispute between the parties arising out of or in connection with this Agreement both parties shall continue to perform their obligations under this Agreement as if such dispute did not exist until the dispute is resolved or this Agreement is terminated (whichever is the sooner) PROVIDED ALWAYS that both parties continue actively to pursue a resolution to the dispute by the means provided in this Agreement.
24.7 Nothing in this Clause 24 shall prevent any party seeking injunctive or interim relief.