Terms of Business
1 Definitions and interpretation
1.1 In these Terms of Business:
1.1.1 These Terms of Business constitute an agreement herein defined as the “Agreement” between the HARTEC Technologies Limited whose company registration number is 10485747 and registered office address is Royal Quays Business Centre, Newcastle Upon Tyne, NE29 6DE, trading as VOVO Digital herein defined as the “Company”, and the party using the Services of the Company herein defined as “Service User”, for the Service User to use the Services and/or Products detailed in the Quotation Accepted in accordance with this Agreement herein defined as the “Services” and/or as appropriate the “Products”.
1.1.2 a reference to this Agreement includes its schedules, appendices and annexes (if any);
1.1.3 a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assignees.
1.1.4 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.1.5 a reference to a gender includes each other gender;
1.1.6 words in the singular include the plural and vice versa;
1.1.7 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.1.8 the table of contents, background section and any clause, schedule or other headings in this Agreement are included for convenience only and shall have no effect on the interpretation of this Agreement; and
1.1.9 Business Days shall be defined as meaning a day other than a Saturday, Sunday or bank or public holiday in England.
3 Service User Obligations
3.1 Service User agrees to purchase the Services and/or Products on the terms set out in this Agreement.
3.2 The Service User shall, at all times and in all respects:
3.2.1 perform its obligations in accordance with the terms of this Agreement;
3.2.2 comply with the Policies of the Company;
3.2.3 co-operate with the Company in all matters arising under this Agreement or otherwise relating to the performance of the Services;
3.2.4 inform the Company in a timely manner of any matters which may affect the provision of the Services & Products;
3.2.5 obtain and maintain all necessary licences, standards, permits and consents required to enable the Company to provide the Services &/or Products and otherwise comply with its obligations.
3.3 The Service User and its representatives shall at all times communicate with the Company and its representatives in a manner deemed by the Company to be acceptable.
4 Exclusivity
4.1 The Company shall be the exclusive provider to the Service User, of the Service(s) & Product(s).
4.1.1 The Service User shall not purchase Service(s) & Product(s) from another party, relating to the Brand, Identifiable legal entity and/or Digital Asset for which the Company are provider Service(s) &/or Product(s) to, whether directly or indirectly, from any other person or business, prior to the Termination of this Agreement in accordance with clause X.
4.2 Nothing in this Agreement shall restrict the Company from providing any Service(s) &/or Product(s) which are the same as or similar to the Service(s) &/or Product(s), to other Service User’s.
5 Obligations of the Company
5.1 Time of performance shall not be of the essence. The Company shall use its reasonable endeavours to perform the Service(s) &/or provide the Product(s) in accordance with any commencement or end dates specified for performance.
5.2 The Company shall not be liable for any delay or failure in the performance of the Service(s) &/or provide the Product(s) caused by:
5.2.1 the Service User’s failure to provide the Company with adequate instructions for the performance of the Service(s) &/or provide the Product(s);
5.2.2 the Service User’s failure to provide the necessary information required to procure the Service(s) &/or provide the Product(s);
5.2.3 Force Majeure.
5.2.4 Events which the Company deems outside of their control
5.2.5 A Third Party(s) failure, error, negligence, default and/or decision in relation to the Service User and/or the Company.
5.3 The Company is under no obligation to use specific Third Party(s), and will only utilise Third Party(s) deem appropriate, and viable for their own business purposes.
6 Warranty
6.1 The Service User warrants that:
6.1.1 it has the right, power and authority to enter into these Agreement and grant to the Provider the rights (if any) inferred in these Agreement; and
6.1.2 The necessary documentation, login credentials and all other information deemed necessary by the Company of the Service(s) &/or provide the Product(s) and all other information, documents, materials, data or other items provided by the Service User are legitimate, and do not infringe the intellectual property rights of any third party.
7 Payment
7.1 The Service User understands payment for Service(s) &/or provide the Product(s) is severable from any third-party contract.
7.2 The Company may raise and issue their invoice(s) for the Service(s) &/or provide the Product(s) at any time.
7.2.1 The Service User may request an individual invoice for the Service(s) &/or provide the Product(s) at any time during the Term, subject to clause 13.
7.3 The Service User shall pay all invoices:
7.3.1 in full in cleared funds within 7 days of the date of each invoice;
7.3.2 Make all payments by direct debit; and
7.3.2 In the event that non-direct debit payment is approved by the Company, to the bank account nominated by the Company.
7.3.3 In the event that payment is not made by direct debit the Service User will lose any associated direct debit discount applied to the Service(s) and/or the Product(s)
7.4 Time of payment is of the essence. Where sums due hereunder are not paid in full by the due date:
7.4.1 The Company may, without limiting its other rights, charge interest & late payment fees in accordance with Late payment of Commercial Debts (Interest) Act 1998 & subsequent regulations on such sums; and
7.4.2 interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
8 Fees
8.1 The Fees for the Service(s) &/or provide the Product(s) are outlined in the Quotation provided by the Company to the Service User and accepted in accordance with clause 10 of these Agreement.
8.2 All Fees are exclusive of value added tax, as defined by the Value Added Tax Act 1994 herein defined as “VAT”.
8.3 All Fees paid are non-refundable.
9 Acceptance
9.1 On written and/or verbal acceptance of Quotation provided by the Company to the Service User, the Service User will become liable to the Company to pay the Fees as outlined in clause 8.
9.2 The Company does not guarantee that the offer will be accepted by the Utility Provider and the Company’s liability is limited as outlined in clause 10.
10 Limitation of liability
10.1 The Company is not liable for any losses incurred by the Service User in relation to these Agreement.
10.2 Nothing in these Agreement shall operate to exclude or limit either Party’s liability for: (1) death or personal injury caused by its negligence; (2) fraud; (3) wilful misconduct; and/or (4) any other liability which cannot be excluded or limited under applicable law.
10.3 Notwithstanding any other provision of these Agreement, the aggregate liability of either Party, its respective directors and employees, whether in contract, tort or otherwise, shall in no circumstances whatsoever (but to the extent allowed by law) exceed the Fees paid by the Service User to the Company. Neither Party shall be liable to the other Party or any third party for indirect or incidental losses and without limitation generally, to the foregoing, for any special consequential, exemplary or punitive damages, economic loss or failure to realise expected profits, savings or other benefits, regardless whether such damages where foreseeable and whether or not a party has been advised of the possibility of such damages
10.4 The Company is not responsible for anything they deem outside of their control
10.5 The Company shall not be liable for any of the following (whether direct or indirect):
10.5.1 loss of profit;
10.5.2 loss of or corruption to data;
10.5.3 loss of use;
10.5.4 loss of production;
10.5.5 loss of contract;
10.5.6 loss of opportunity;
10.5.7 loss of savings, discount or rebate (whether actual or anticipated);
10.5.8 harm to reputation or loss of goodwill.
10.6 Notwithstanding any other provision of these Agreement, the liability of the parties shall not be limited in any way in respect of the following:
10.6.1 death or personal injury caused by negligence;
10.6.2 fraud or fraudulent misrepresentation; or
10.6.3 any other losses which cannot be excluded or limited by applicable law.
11 Termination
11.1 These Agreement may be terminated at any time by the Company, giving not less than thirty days’ notice in writing to the Service User.
11.2 These Agreement may be terminated at any time by the Company, giving not less than thirty days’ notice in writing to the Service User.
11.2 Either party may terminate this Agreement at any time by giving notice in writing to the other party if:
11.2.1 the other party commits a material breach of these Agreement, and such breach is not remediable;
11.2.2 the other party commits a material breach of these Agreement which is not remedied within 14 days of receiving written notice of such breach;
11.2.3 any consent, licence or authorisation held by the other party is revoked or modified such that the other party is no longer able to comply with its obligations under these Agreement or receive any benefit to which it is entitled.
11.3 Without prejudice to any other rights that it may have, the Company may terminate these Agreement immediately on written notice to the Service User if the Service User has failed to pay any amount due under these Agreement on the due date and such amount remains unpaid ten Business Days after the Service User has received a written notification from the Company that the payment is overdue.
11.4 Either party may terminate these Agreement at any time by giving notice in writing to the other party if that other party:
11.4.1 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
11.4.2 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) or if the non-defaulting party reasonably believes that to be the case;
11.4.3 becomes the subject of a company voluntary arrangement under IA 1986;
11.4.4 becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;
11.4.5 becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;
11.4.6 becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;
11.4.7 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
11.4.8 has a resolution passed for its winding up;
11.4.9 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
11.4.10 is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within 7 days of that procedure being commenced;
11.4.11 has a freezing order made against it;
11.4.12 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;
12 Confidential information
12.1 Each party undertakes that it shall keep any information that is confidential in nature concerning the other party and its any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity herein defined as “Affiliates”, including any details of its business, affairs, customers, clients, suppliers, plans or strategy ‘Confidential Information’ confidential and that it shall not use or disclose the other party’s Confidential Information to any person.
12.2 Each party recognises that any breach or threatened breach of this clause may cause irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages, the parties agree that the non-defaulting party may be entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
13 Entire agreement
13.1 These Agreement constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
13.2 Each party acknowledges that it has not entered into these Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in these Agreement.
13.3 Nothing in these Agreement purports to limit or exclude any liability for fraud.
14 Notices
14.1 Any notice or other communication given by a party under these Agreement shall be:
14.1.1 in writing and in English;
14.1.2 signed by, or on behalf of, the party giving it;
14.1.3 sent to the relevant party at the address.
14.2 Notices may be given, and are deemed received:
14.2.1 by hand: on receipt of a signature at the time of delivery;
14.2.2 by email: when sent from the registered email address
14.2.3 the service user accepts that all calls within the Company are recorded for training, monitoring and verification purposes.
15 Force majeure
15.1 In this clause, Force Majeure means an event or sequence of events beyond a Party’s reasonable control preventing or delaying it from performing its obligations under these Agreement, inability to pay is not Force Majeure.
15.2 A party shall not be liable if delayed in or prevented from performing its obligations under these Agreement due to Force Majeure, provided that it:
15.2.1 promptly notifies the other of the Force Majeure event and its expected duration; and
15.2.2 uses reasonable endeavours to minimise the effects of that event.
16 Further assurance
Each party shall at the request of the other party, and at the cost of the requesting party, do all acts and execute all documents which are necessary to give full effect to these Agreement.
17 Variation
These Agreement may be varied from time to time by the Company by informing the Service User in writing of any variation 30 days before the variation takes effect. Any variation will be deemed to have been accepted, variations will not and cannot be applied retrospectively.
18 Assignment and sub-contracting
18.1 The Company may at any time assign, sub-contract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights under these Agreement, provided that it gives prior written notice to the Service User.
18.2 The Service User shall not assign, sub-contract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights under these Agreement, in whole or in part, without the Company’s prior written consent.
19 Set off
The Service User shall pay all sums that it owes to the other party under these Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
20 No partnership or agency
The parties are independent and are not partners or principal and agent and these Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf.
21 Severance
21.1 If any provision of these Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of these Agreement shall not be affected.
21.2 If any provision of these Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
22 Compliance with law
Each party shall comply and shall (at its own expense unless expressly agreed otherwise) ensure that in the performance of its duties under these Agreement, its employees, agents and representatives will comply with all applicable laws and regulations, provided that neither party shall be liable for any breach of this clause 22 to the extent that such breach is directly caused or contributed to by any breach of these Agreement by the other party (or its employees, agents and representatives).
23 Third Party Rights
23.1 A person who is not a party to these Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of these Agreement.
23.2 The Affiliates of the Company shall have the right to enforce the provisions of these Agreement.
24 Governing law
These Agreement and any dispute or claim arising out of, or in connection with, it, its 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.
25 Jurisdiction
The parties irrevocably agree that the courts of England and Wales shall have jurisdiction to settle any dispute or claim arising out of, or in connection with, these Agreement, its subject matter or formation
The Service User agrees that the Company may publicly refer to the Service User (in either written or verbal form) as being a client of the Company.
The Service User agrees that Company may use the Service User’s company logo for activities including but not limited to:
a. publication on the Company website;
b. use in sales pitch decks, presentations and/or events;
c. use on social media; and
d. use in internal documents.
Company may, subject to the Service User’s prior written consent and approval, engage in marketing activities that refer to the Service User. Such marketing activities may include but are not limited to:
a written and/or video case study;
b. joint marketing and/or social activities;
c. joint public relations activities; and
d. external or internal event activities.
Subject to the above approval, Company shall be entitled to use the material created during a Joint Marketing Activity in perpetuity anywhere in the world, in any media whether now known or developed in the future, for the purposes of promoting Company’ goods or services.
