"Business Day": a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
"Contract": the contract between the Customer and Form for the supply of the Services in accordance with the details as set out in the front-sheet, these Conditions and any Schedules.
"Control": has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.
"Customer Materials": all materials, equipment and tools, drawings, specifications and data supplied by the Customer to Form.
"Deliverables": all documents, products and materials developed by Form or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including the Online Content, computer programs, data, reports and specifications (including drafts).
"Form IPRs": all Intellectual Property Rights subsisting in the Deliverables excluding any Customer Materials incorporated in them.
"Intellectual Property Rights": all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Supply of services
Form shall supply the Services to the Customer from the date of registration on the Gather programme.
In supplying the Services, Form shall:
perform the Services with reasonable care and skill;
use reasonable endeavours to perform the Services in accordance with the service description set out in Schedule 1;
ensure that the Deliverables, and all goods, materials, standards and techniques used in providing the Services, are of satisfactory quality and are fit for purpose;
observe all reasonable health and safety rules and regulations and security requirements that apply at any of the Customer's premises and have been communicated to Form, provided that Form shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract;
take reasonable care of all Customer Materials in its possession and make them available for collection by the Customer on reasonable notice and request, always provided that Form may destroy the Customer Materials if the Customer fails to collect the Customer Materials within a reasonable period after completion of the Services; and
The Customer shall:
co-operate with Form in all matters relating to the Services;
provide, for Form, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer's premises, office accommodation, data and other facilities as reasonably required by Form or any of them;
provide, in a timely manner, the Customer Materials and such information as Form may reasonably require to enable it to provide the Services, and ensure that they are accurate and complete in all material respects;
provide Form with permission to use photography and video of its employees, created during the supplying of the Services, in programme and promotional materials and on social media.
The Customer warrants:
that the Customer is solvent; and
that the directors of the Customer have not been convicted of a criminal offence, declared bankrupt or had a county court administration order against him or her under the County Courts Act 1984.
If Form’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, Form shall:
not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
be entitled to payment of the Charges despite any such prevention or delay; and
be entitled to recover any additional costs, charges or losses Form sustains or incurs that arise directly or indirectly from such prevention or delay.
Form and its licensors shall retain ownership of all Form IPRs. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.
Form grants the Customer, or shall procure the direct grant to the Customer of, a worldwide, non-exclusive, non-transferable, royalty-free, licence to use Form IPRs solely for the purpose of receiving and using the Services and the Deliverables in the Customer's business.
The Customer grants Form a worldwide, non-exclusive, royalty-free licence to use, copy and modify the Customer Materials for the purpose of providing the Services to the Customer in accordance with the Contract.
The Customer shall indemnify Form in full against any sums awarded by a court against Form arising out of or in connection with any claim brought against Form for infringement of a third party's rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt, use, copying or modifying of the Customer Materials by Form.
The Customer agrees that for the period of five years from the Services Start Date, Form and its licensees shall be entitled to use any materials of, or that relate to, the Customer, including the Customer Materials, videos, and photographs, for the purposes of promotion and marketing including use in programmes and promotional materials and use in social media.
The Customer shall obtain waivers of any moral rights in the materials referred to in condition 4.5 to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
Charges, expenses and payment
In consideration of the provision of the Services, the Customer shall pay Form the Charges in accordance with this condition 5.
All amounts payable by the Customer exclude amounts in respect of value added tax ("VAT"), which the Customer shall additionally be liable to pay to Form at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
Form shall submit invoices for the Charges plus VAT if applicable to the Customer at the intervals specified in Schedule 2.
The Customer shall pay each invoice due and submitted to it by Form, within 7 days of receipt, to a bank account nominated in writing by Form.
All amounts due under the Contract from the Customer to Form shall be paid by the Customer in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
The Customer acknowledges that it shall be responsible for its own costs and expenses incurred in relation to receipt of the Services, including the costs of travel, mileage, alternative accommodation, meals and subsistence.
For the period of two years from the Services Start Date, the Customer shall maintain in force with a reputable insurance company public liability insurance with a limit of at least £1m per claim.
Limitation of liability
Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
death or personal injury caused by negligence;
fraud or fraudulent misrepresentation; and
breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
7.2 Subject to conditions 7.1 and 7.3, Form’s total liability to the Customer arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall not exceed:
(a) the amount of the Charges paid by the Customer to Form hereunder; or
(b) the state aid value of funded services received by the Customer to Form hereunder.
Subject to condition 7.1, Form shall not be liable in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract, including informal advice acted on from other Gather participants, for:
Loss of profits;
Loss of sales or business;
Loss of agreements or contracts;
Loss of anticipated savings;
Loss of use or corruption of software, data or information;
Loss of or damage to goodwill;
Indirect or consequential loss;
Any losses suffered by the Customer or its employees during the travel to, and delivery of, Study Trips including lost or damaged luggage or other personal items, and costs incurred as a result of missed pre-booked transportation; or Insolvency.
Without affecting any other right or remedy available to it, Form may terminate the Contract with immediate effect by giving written notice to the Customer if:
the Customer commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of ten days after being notified in writing to do so;
the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
the Customer’s financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;
the Customer fails to pay any amount due under the Contract on the due date for payment; or
there is a change of Control of the Customer.
On termination of the Contract for whatever reason:
the Customer shall immediately pay to Form all of Form’s outstanding unpaid invoices and interest;
in respect of Services supplied but for which no invoice has been submitted, Form may submit an invoice, which shall be payable immediately on receipt;
in respect of the balance of Charges for Gather, Form may submit an invoice to the Customer for that balance not yet invoiced, which shall be payable immediately on receipt, irrespective of which (if any) of the Services have at the date of termination been supplied by Form;
any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect; and
termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
Each party shall be excused from performance of its obligations under this Contract if and insofar as such performance is hindered or prevented (directly or indirectly) by reason of any government action, riot, armed conflict, disease, epidemic, or act of God ("Force Majeure Event") provided that, as soon as practicably possible [(and in any event within five days after any of such circumstances or events arising, the party so affected notifies the other party in writing; in which event the time for performance of the affected obligation will be extended by such period as is reasonable, or as agreed between the parties.
If any Force Majeure Event prevents the Supplier from fulfilling its obligations under this Contract for a continuous period of more than two weeks, the Customer may terminate this Contract and clause 8 shall apply.
Assignment and other dealings
The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without Form’s prior written consent.
Form may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.
Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by condition 9.3(b) or condition 9.3(c).
Each party may disclose the other party's confidential information:
to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this condition 8.3; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
Form may disclose the confidential information of the Customer to the Liverpool City Region Combined Authority (“LCRCA”), and any third parties sub-contracted by Form or LCRCA to provide any of the Services.
Neither party shall use any other party's confidential information for any purpose other than to perform its obligations or exercise its rights under the Contract.
The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
If a dispute arises out of or in connection with the Contract or the performance, validity or enforceability of it then the parties shall follow the procedure set out in the LCRCA Dispute Resolution Policy.
A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
A notice or other communication given to a party under of in connection with this agreement shall be delivered personally, sent by commercial courier, or sent by pre-paid first-class post or recorded delivery to the registered office of the recipient.
If a notice or other communication has been properly sent or delivered in accordance with this clause, it will be deemed to have been received as follows:
if delivered personally, at the time of delivery; or
if delivered by commercial courier, at the time of signature of the courier’s receipt; or
if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second day after posting.
Third party rights
The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.
Subject to condition 9.5, each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.