In these Terms and Conditions the following expressions shall have the following meanings:
- "Agreement" means these Terms and Conditions together with any quotation and Service Specification.
- "Usage Schedule" means a statement detailing the usage of the Service by the User.
- "Contract Date" means the date on which the Agreement is entered into, being the date on which the User begins using the Service.
- "FLG" means FLG Business Technology Limited, a company registered in England and Wales, company number 5289571, whose registered office is at Ribble Court, 1 Mead Way, Padiham BB12 7NG.
- "Service" means the service(s) FLG will provide to the User for the term of the Agreement as specified in the quotation and Service Specification.
- "Service Specification" means the information provided to the User specifying the Service that will be provided.
- "Minimum Period" means the period, commencing from the Start Date, for which the User is committed to using and paying for the Service and for which FLG is committed to providing the Service.
- "Usage Charges" means the payments made by the User to FLG in respect of usage of other services as defined in the Usage Schedule.
- "Service Charges" means monthly, quarterly or annual charges payable to FLG by the User in return for FLG maintaining and/or operating the Service as specified in the Service Specification.
- "Set Up Charges" means charges payable to FLG by the User in return for FLG designing, developing, testing and/or deploying the Service as specified in the Service Specification.
- "Start Date" means the date, after design and testing, that the Service is suitable for commercial service, usually 30 days from the Contract Date unless otherwise stated.
- "Term" means a period commencing on the Start Date and ending on the date determined under paragraph 4 below.
- "User" means the person or entity with which FLG enters into the Agreement.
2. The Service
- FLG will supply the Service to the User throughout the Term in consideration of the User paying to FLG Set Up Charges, Service Charges and Usage Charges.
- The User will provide such assistance as FLG may reasonably require to enable FLG to provide the Service to the User.
- In its use of the Service the User will comply at all times with:
- the Data Protection Act 1998 or any subsequent amendment to or replacement of that act;
- the Privacy and Electronic Communications (EC Directive) Regulations 2003 or any subsequent amendment to or replacement of that act.
- The User shall not use the Service for any improper or unlawful purpose or in a manner which is offensive and the User shall comply with the terms of the Agreement including using the Service only for the purpose set out in the Service Specification and shall comply with any reasonable instructions which FLG may from time to time issue relating to the Service.
- The User agrees that the content of the Service may be monitored and that FLG may terminate this Agreement forthwith by giving notice to the User if the Service is found to be operated otherwise than in accordance with the terms of the Agreement and any instructions issued by FLG relating to the Service from time to time.
3. Payment Terms
- The User will pay to FLG Set Up Charges, Service Charges and Usage Charges in accordance with the payment terms set out in this paragraph 3.
- Where FLG offers credit terms to the User, all charges are due for payment strictly 14 days from the date of invoice. FLG reserves the right to request at any time that the User should make suitable payment to FLG if the User's credit limit is approached. Failure of the User to comply with this request or failure to make a payment by the due date shall be deemed to be a breach of the Agreement which shall entitle FLG to terminate the Agreement forthwith by giving notice to the User.
- Any invoice outstanding 14 days after the date of invoice may be referred to Daniels Silverman Limited and will be subject to a surcharge of 15% plus VAT to cover the collection costs incurred. This surcharge together with all other charges and legal fees incurred will be the responsibility of the User and will be legally enforceable.
- Where credit is not offered to the User, FLG reserves the right to request reasonable pre-payment from the User in respect of Service Charges. Failure of the User to comply with such a request shall be deemed to be a breach of the Agreement which shall entitle FLG to terminate the Agreement forthwith by giving notice to the User.
- FLG reserves the right to amend the Set Up Charges if the time and resources used by FLG during development of the Service for the User materially exceed those estimated. In such circumstances the User may be asked (at FLG's discretion) either to pay the extra costs or to curtail their requirements accordingly.
- FLG reserves the right to charge interest at the rate of 4% per annum above the National Westminster Bank Plc base rate from time to time on all sums which are outstanding and such interest will accrue on a daily basis from the date when payment becomes due until the date when payment is actually made and shall accrue after as well as before any judgment.
- All rates and charges specified in any terms, quotations, Usage Schedules or other documentation are subject to VAT at the rate prevailing unless otherwise specified.
- Where a Minimum Period has been specified in the Service Specification the Agreement shall (subject to the provisions for earlier termination contained in these Terms and Conditions) continue until the end of the Minimum Period and thereafter shall continue in force unless and until terminated by either party giving to the other not less than 28 days' prior written notice, such notice to expire at any time after the end of the Minimum Period.
- Where no Minimum Period has been specified, the Agreement shall (subject to the provisions for earlier termination contained in these Terms and Conditions) continue in force unless and until terminated by either party giving to the other notice by telephone or in writing to expire at any time.
- In addition to termination under paragraphs 3(b) or 3(d) for failure by the User to make payments due, FLG shall be entitled to terminate the Agreement forthwith by notice:
- in the event that the User has committed a material breach of the provisions of the Agreement provided always that in the case of a breach which is capable of remedy FLG shall have identified the breach concerned and requested that the User remedy it and the User shall not have remedied the breach within the period of 30 days from being notified of the breach concerned;
- if the User shall have a Receiver, Administrative Receiver or Administrator appointed, or shall enter compulsory or voluntary liquidation.
- Upon termination of the Agreement all outstanding charges must be paid forthwith by the User to FLG.
5. Intellectual Property Rights
The User acknowledges and agrees that all rights, title and interest in the Service and all software and systems used in the Service are owned by FLG and nothing in the Agreement shall confer on the User any right of ownership of the Service or of any such software and systems except where FLG has agreed to write bespoke software for the User on terms that the intellectual property rights in such software shall belong to the User.
6. Information & Data
FLG does not own any data, information or material that the User submits to the Service in the course of using the Service ("User Data"). The User, not FLG, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all User Data, and FLG shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any User Data. In the event this Agreement is terminated (other than by reason of breach of the Agreement by the User), FLG will make available to the User a file of the User Data within 30 days of termination if the User so requests at the time of termination. FLG reserves the right to withhold, remove and/or discard User Data without notice for any breach of this Agreement by the User, including, without limitation, User non-payment. Upon breach of the Agreement by the User, the User's right to access or use User Data immediately ceases, and FLG shall have no obligation to maintain or forward any User Data.
7. Force Majeure
FLG shall not be liable for any failure of performance of the Service for any reason beyond FLG's reasonable control including but not limited to the failure of power supply, strike or lock out, act of God, war, riot, explosion, abnormal weather conditions, fire, flood, government action, delay by suppliers, accidents, and shortage of materials or labour.
- Save as expressly provided in these Terms and Conditions all warranties, conditions or other terms implied by statute or common law are hereby excluded to the maximum extent permissible by law.
- FLG shall have no limit on its liability for death or personal injury caused by FLG's negligence or the negligence of any of its employees or agents.
- Subject to paragraph 8(b) FLG shall have no liability to the User in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof for any increased costs or expenses, for any loss of profit, business, contracts, revenues or anticipated savings, or for any special, indirect or consequential loss or damage of any nature whatsoever.
- Subject to paragraph 8(b) and notwithstanding anything contained in these Terms and Conditions, FLG's liability in contract, tort (including negligence or breach of statutory duty) or otherwise arising by reason of or in connection with the provision of the Service shall be limited to the sum of £5000 in the aggregate.
The User will indemnify FLG fully against all claims, losses, liabilities, costs (including legal costs) and expenses which FLG may suffer or incur as a result of any breach by the User of its obligations under the Agreement or of any misuse of the Service by the User.
- Any notice which must be given under the Agreement may either be delivered personally or posted.
- Notice given by post must be pre-paid and correctly addressed to the recipient company at its registered office.
- A notice delivered personally is deemed served upon delivery.
- A posted notice which complies with paragraph 10(b) above is deemed served on the second business day after the day of posting.
- Neither party shall assign, sub-contract, license or otherwise dispose of any part of its rights or obligations under the Agreement without the prior written consent of the other.
- The headings are for convenience only and shall not be used to interpret these Terms and Conditions.
- The Agreement is subject to the laws of England and Wales.
- All disputes arising out of the Agreement shall be subject to the exclusive jurisdiction of the English Courts.