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GENERAL TERMS OF BUSINESS

1.     Interpretation

1.1 The definitions and rules of interpretation in this clause apply to these Terms of Business. Capitalised terms below and otherwise defined in these Terms of Business shall have the meaning given herein.

        Affiliate or affiliate: in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party from time to time.

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

Client: the client entity identified in the applicable Software Agreement as the Customer.

Confidential Information: confidential information concerning the business, affairs, customers, clients or suppliers of a party, including technical or commercial know-how, pricing, or market opportunities and any other information which could reasonably be considered as confidential by its nature.

Control: has the meaning given in section 1124 of the Corporation Tax Act 2010.

Data Protection Legislation: (a) to the extent the UK GDPR applies, the law of the United Kingdom which relates to the protection of personal data, and (b) to the extent the EU GDPR applies, the law of the European Union to which the parties are subject, which relates to the protection of personal data.

Controller, processor, data subject, personal data, personal data breach and processing have the meanings ascribed to them in the UK GDPR.

Deliverables: all documents, products and materials developed by FMEC or its personnel for the Client, as specified in a Software Agreement.

EU GDPR: the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.

FMEC: FMEC Group UK Ltd.

Intellectual Property Rights: all intellectual property rights, including patents, copyrights, trademarks, trade secrets, and any related rights, whether registered or unregistered, worldwide.

Pre-existing Materials: all documents, information and materials provided by a party relating to the Services which existed prior to the date these Terms of Business began to apply between the parties.

Services: the services (including the provision of a software licence) to be provided by FMEC under these Terms of Business, as set out in the applicable Software Agreement.

Software Agreement: a software agreement under which FMEC agrees to provide a software licence and additional services to the Client in accordance with these Terms of Business.

Third-Party Accounts: any services and/or software provided by a third party in the provision of all or parts of the Services including that of hosting providers, payment services, information and communication services, analysis services, platforms of advertising, platforms and providers of advertising services and management (such as Google Ads, Microsoft Ads), social media services and management (such as Facebook Business Manager), databases and public and private APIs.

UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

1.2 Clause and paragraph headings shall not affect the interpretation of these Terms of Business.

1.3   Words in the singular shall include the plural and vice versa.

1.4   Where the words include(s), including or in particular are used in these Terms of Business, they are deemed to have the words without limitation following them.

2.     Commencement and duration

2.1 These Terms of Business shall apply to the provision of the Services by FMEC to the Client.

2.2 These Terms of Business shall remain in effect until the termination or expiry of the applicable Software Agreement, or until terminated in accordance with the provisions outlined within these Terms of Business.

3.          FMEC’s obligations

3.1 FMEC shall use reasonable endeavours to provide the Services and Deliverables to the Client in accordance with the applicable Software Agreement.

3.2 Any dates or times for performance shall be estimates only and time for performance by FMEC shall not be of the essence.

3.3 FMEC shall perform the Services in accordance with the level of care and skill reasonably expected of other professionals performing similar services.

4.     Client’s obligations

4.1   The Client shall:

  • co-operate with and provide reasonable assistance to FMEC in all matters in relation to these Terms of Business and the Services;
  • provide, in a timely manner, such materials and other information as FMEC may reasonably require, and ensure that such materials and/or other information are complete and accurate in all material respects; and
  • obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services.
    • If FMEC’s performance of its obligations hereunder and/or the Services are prevented or delayed by any act or omission of the Client, its personnel or subcontractors, FMEC shall not be liable for any failure to perform the Services or perform its other obligations, nor shall FMEC be liable for any costs, charges, losses or other liabilities sustained or incurred by the Client that arise directly or indirectly from such prevention or delay, and shall be allowed an extension of time to perform the Services as necessary.
    • The Client shall not, at any time from the commencement of these Terms of Business until the expiry of twelve months after the termination or expiry of these Terms of Business, solicit or entice away from FMEC, or employ or attempt to employ any person who is, or has been, engaged as personnel or a subcontractor of FMEC in the provision of the Services, except that this clause 4.3 shall not apply to personnel who respond of their own volition to a genuine public recruitment campaign.
    • Any consent given by FMEC in accordance with clause 4.3 shall be subject to the Client paying to FMEC a sum equivalent to 50% of the then current annual remuneration of such subcontractor or member of FMEC personnel or, if higher, 50% of the annual remuneration to be paid by the Client to that subcontractor or member of FMEC personnel.
    • In the event the Client breaches clause 4.3, the Client shall pay liquidated damages to FMEC at a rate of 50% of such personnel’s or subcontractor’s annual salary or service charges. The parties agree that the liquidated damages set out at this clause are a genuine pre-estimate of the losses which FMEC may incur in relation to such solicitation, and are neither excessive, extravagant, unconscionable nor oppressive.

5.     Change to Services

5.1 If either party requests a change to the scope or execution of the Services, the other party has no obligation to do so unless and until the parties have agreed the necessary variations to the Services and/or the applicable Software Agreement.

5.2 Notwithstanding clause 5.1, FMEC may, from time to time and on giving five (5) days’ notice, make changes to the Services in order to comply with any applicable law, regulation or safety requirement, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.

6.     Charges and payment

6.1 In consideration of the provision of the Services by FMEC, the Client shall pay the charges as set out in the applicable Software Agreement. Such Software Agreement shall specify whether the charges shall be on a time and materials basis, a monthly or annual retainer, a fixed price basis (including daily rate) or a combination.

6.2 Unless agreed otherwise in a Software Agreement and subject to clause 6.4 below, FMEC shall be entitled to invoice the Client monthly in advance for its charges, expenses and materials (together with VAT, where appropriate).

6.3 All charges contained in the Software Agreement exclude the cost of hotels, subsistence, travelling, materials, and any other ancillary expenses reasonably incurred by FMEC personnel in providing the Services (including cost of services provided by third parties). Such expenses are payable by the Client provided these are agreed in advance between the parties before being incurred and may be invoiced separately.

6.4 Unless agreed otherwise within a Software Agreement, the Client shall pay each invoice submitted to it by FMEC, in full and in cleared funds, within 30 days of FMEC’s invoice date.

6.5 Without prejudice to any other right or remedy that it may have, if the Client fails to pay FMEC on the due date, FMEC may suspend all Services until payment has been made in full.

6.6 If the Client fails to make a payment due to FMEC under the Software Agreement by the due date, then, without limiting FMEC’s other remedies, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

6.7 The Client shall pay any amounts due to FMEC in full without deduction, set off, counterclaim or withholding.

6.8 Payments shall be made in Euro. In the event that the parties agree that any payments are to be made in another currency, the rate of exchange shall be specified in the relevant Software Agreement or, failing that, at an appropriate prevailing rate determined by FMEC.

7.     Intellectual property rights

7.1 All Intellectual Property Rights in any of FMEC’s Pre-existing Materials shall remain owned by FMEC.

7.2 All Intellectual Property Rights in any Client Pre-existing Materials shall remain owned by the Client, subject to a royalty-free, fully paid-up, worldwide, non-exclusive, perpetual licence granted by the Client to FMEC for the purpose of providing the Services and the Deliverables. All other rights of any nature subsisting in the Deliverables and any other materials (regardless of format) which are newly created or arise out of the performance of the Services (the “New IP“) shall vest in FMEC from the date on which they are created, subject to a royalty-free, fully paid-up, worldwide, non-exclusive, perpetual licence granted by FMEC to the Client to use any such New IP for the purposes of receiving and using the Services and the Deliverables in its business.

7.3 The Client shall not sub-licence, assign or otherwise transfer the rights granted in clause 7.2.

7.4 The Client hereby consents to FMEC using the Client’s name and logo for use on its website(s) and in its marketing materials and other oral, electronic, or written promotions, which shall include naming the Client as a client of FMEC and a brief description of the Services provided. Either party may elect to issue a press release related to the Services, provided that any such release shall not be issued until approved by the other party (such approval not to be unreasonably withheld or delayed).

7.5 Each party agree to sign all documents and do all other acts as may be necessary to give full effect to this clause, in each case at the cost of the other party.

7.6 The Client:

        (a)    warrants that the receipt and use in the performance of these Terms of Business by FMEC, its agents, subcontractors or consultants of the Client Pre-existing Materials shall not infringe the rights, including any Intellectual Property Rights, of any third party; and

        (b) shall indemnify FMEC against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred or paid by FMEC arising out of or in connection with any claim brought against FMEC, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of the Services of the Client Pre-existing Materials. 

8.     Confidentiality

8.1 Each party (the “Recipient“) shall keep confidential all Confidential Information disclosed by the other party (the “Discloser“) at any time during these Terms of Business and for a period of two years after termination or expiry of it.

8.2    The Recipient may disclose Confidential Information:

  • to its affiliates and its and their employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the Recipient’s obligations under these Terms of Business; and
  • as may be required by law, court order or any governmental or regulatory authority, provided that the Recipient shall, as far as it is legally permitted to do so, provide the Discloser with prior written notice of any request for disclosure so that the Discloser may seek a protective order or other appropriate remedy.
    • The Recipient shall ensure that its personnel, advisers and subcontractors to whom it discloses Confidential Information are bound by terms and conditions of confidentiality at least as comprehensive as those set out within this clause 8.
    • The Recipient shall implement reasonable security precautions to protect any Confidential Information disclosed to it and shall not use such information for any purpose other than to perform its obligations under these Terms of Business.
    • All materials, specifications and data supplied by FMEC to the Client (including FMEC Pre-existing Materials) shall, at all times, be and remain as the exclusive property of FMEC, but shall be held by the Client in safe custody at its own risk and maintained and kept in good condition by the Client until returned to FMEC, and shall not be disposed of or used other than in accordance with FMEC’s written instructions or authorisation.

9. Data protection

9.1 Each party shall comply with its obligations under the Data Protection Legislation in relation to all personal data that is processed under or in connection with these Terms of Business (“Client Personal Data”). This clause 9 is in addition to, and does not relieve, remove or replace a party’s obligations or rights under the Data Protection Legislation

9.2 The parties acknowledge that where the Client is the controller and FMEC is the processor, clauses 9.2 to 9.5 of these Terms of Business shall apply.

9.3 Without prejudice to the generality of clause 9.1, the Client shall ensure that it has all necessary and appropriate consents and notices in place to enable lawful transfer of the Client Personal Data to FMEC and that it is legally entitled to transfer the Client Personal Data to FMEC so that FMEC may lawfully process it in accordance with these Terms of Business. The Client shall also be responsible for the provision of privacy notices to data subjects, and shall comply with all other obligations imposed on a controller under the Data Protection Legislation

9.4 Without prejudice to the generality of clause 9.1, FMEC shall, in relation to any personal data processed in connection with these Terms of Business:

  • process that personal data only on the lawful documented instructions of the Client unless FMEC is required by applicable law to otherwise process that personal data, including with regard to transfers of Client Personal Data to a third country or an international organisation, unless required to do so by Union or Member State law to which FMEC is subject. In such an event, FMEC shall inform the Client of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
  • ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, in compliance with the Data Protection Legislation;
  • ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential or are under an appropriate statutory or common law obligation of confidentiality; and
  • assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to FMEC), at the Client’s cost and written request, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
  • notify the Client without undue delay on becoming aware of a personal data breach involving Client Personal Data;
  • at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of these Terms of Business and/or applicable Software Agreement, unless required by applicable law to store the personal data. For the purpose of this clause, Client Personal Data shall be considered deleted where it is put beyond further use by FMEC; and
  • maintain appropriate records to demonstrate its compliance with this clause 9. The Service Provider shall allow the Client to audit such record(s) and FMEC’s compliance with the obligations within this clause 9 on reasonable notice, no more than once per annum.

9.5 The Client provides its prior, general authorisation for FMEC to:

(a) appoint processors to process the Client Personal Data, provided that FMEC: (i) shall ensure that the terms on which it appoints such processors comply with Data Protection Legislation, and are consistent with the obligations imposed on FMEC in this clause; and (ii) shall remain responsible for the acts and omissions of any such processor as if they were the acts and omissions of FMEC; and

(b) transfer Client Personal Data outside the European Economic Area, provided that FMEC shall ensure that all such transfers are effected in accordance with Data Protection Legislation. For these purposes, the Client shall promptly comply with any reasonable requests of FMEC, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).

10.           Limitation of liability

10.1 This clause 10 sets out the entire liability of FMEC (including without limitation any liability for the acts or omissions of its personnel and subcontractors) to the Client in respect of:

  • any breach of these Terms of Business, howsoever arising;
  • any use made by the Client of the Services, any deliverables in connection with the Services or any part of them; and
  • any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms of Business and/or the Services.

10.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Terms of Business. No advice or information provided by FMEC, whether oral or written, will give rise to guarantees not expressly indicated in these Terms of Business. FMEC shall not be liable for any delays, delivery failures or any other loss or damage resulting from the transfer of data over communication networks and facilities, including the internet, nor for any failure to perform the Services where such failure is due, in whole or in part, to any act or omission of the Client, its personnel or subcontractors.

10.3         Nothing in these Terms of Business limits or excludes the liability of FMEC:

  • for death or personal injury resulting from its negligence; or
  • for fraud or fraudulent misrepresentation; or
  • for anything else which cannot otherwise be limited or excluded by applicable law.

10.4 Subject to clauses 10.2 and 10.3:

  • FMEC shall not under any circumstances whatsoever be liable for loss of profits, wasted expenditure, loss of business or sales, depletion of goodwill and/or similar losses, loss of goods, loss of contract, loss of use, loss of or corruption of or damage to data or information, loss of opportunity, loss of anticipated savings or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses arising under or in connection with these Terms of Business;
  • FMEC shall not under any circumstances be liable for any loss incurred as a result of the use of technology, data, tools, equipment or any other input provided by a third party including (without limitation) any subcontractors used by FMEC; and
  • FMEC’s total aggregate liability to the Client in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Services and its obligations under these Terms of Business shall in all circumstances be limited to the price paid for the Services during the previous 6 months prior to any such claim arising. The Client is responsible for making its own arrangements for the insurance of any excess loss.

10.5 Unless the Client notifies FMEC that it intends to make a claim in respect of an event within the notice period, FMEC shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire six months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

11. Force majeure

A party shall not be in breach of these Terms of Business, nor liable for any failure or delay in performance of any obligations under these Terms of Business (and the time for performance of the obligations shall be extended accordingly) arising from any circumstance not within its reasonable control including, without limitation, acts of God, flood, drought or other natural disaster, epidemic or pandemic, terrorist attack, civil war, any law or action taken by a government or public authority, collapse of buildings, labour or trade disputes, non-performance by suppliers or subcontractors and interruption or failure of utility service.

12. Variation

Subject to clause 5, no variation of these Terms of Business shall be valid unless it is in writing and signed by or on behalf of an authorized signatory of each of the parties.

13. Status

The relationship of FMEC to the Client will be that of an independent contractor. Nothing in these Terms of Business will render FMEC, or any of its Affiliates or its and their officers, employees, agents or representatives, an officer, employee, worker, agent or partner of the Client, and FMEC will not hold themselves out as such. Nothing in these terms of Business is intended to, or shall operate to, create a partnership or joint venture between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power). Each party confirms it is acting on its own behalf and not for the benefit of any other person.

14. Waiver

If either party delays or does not take action to enforce its rights under these Terms of Business this does not prevent either party from taking action later.

15. Severance

If any court or competent authority decides that any of the provisions of these conditions are invalid, unlawful or unenforceable to any extent, the condition will, to that extent only, be severed from the remaining conditions, which will continue to be valid to the fullest extent permitted by law.

16. Entire agreement

16.1 These Terms of Business, together with the applicable Software Agreement, constitute the entire agreement between the parties and supersede and extinguish all previous drafts, arrangements, understandings or agreements between them, whether written or oral, relating to the subject matter of these Terms of Business and the Software Agreement.

16.2 Each party acknowledges that, in agreeing to these Terms of Business, it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in these Terms of Business.

17. Assignment

17.1 The Client shall not, without the prior written consent of FMEC, assign, transfer, charge, mortgage, subcontract, or deal in any other manner with all or any of its rights or obligations under these Terms of Business.

17.2 FMEC may at any time assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under these Terms of Business, provided that FMEC shall remain liable for the acts or omissions of any of its subcontractors.

18. Rights of third parties

18.1 Subject to clause 20.2 below, these Terms of Business do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise for any third party to enforce any term of these Terms of Business.

18.2 Any Affiliate of FMEC may enforce any term of these Terms of Business.

19. Governing law and jurisdiction

These Terms of Business or any Software Agreement, and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the laws of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms of Business

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