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1. Interpretation
In these Conditions:
a) "the Company" means the company or business to
which IF shall provide services under and in accordance with
the Proposal;
b) "the Contract" means the agreement between the
Company and Industry Forum concluded by the Company's authorised
signatory signing the Company's acceptance of the Proposal subject
to these Conditions;
c) "DTI" means the Department of Trade and Industry;
d) "the Fee" means the price exclusive of Value Added
Tax, payable to IF by the Company under the Proposal;
e) "IF" means the SMMT Industry Forum of 2410 Regents
Court, The Crescent, Birmingham Business Park, Birmingham B37
7YE;
f) the “IF Materials” means all documents belonging
to IF and supplied to the Company in connection with the Contract,
including but not limited to the “Common Approach Manual”
or excerpts from it as appropriate and includes information
in CD-ROM format or other non-printed media:
g) "loss" includes destruction;
h) "month" means calendar month;
i) "person" includes a corporation;
j) "the Proposal" means the letter as signed by the
Company which details the supply of Services to be provided
to the Company by IF subject to these Conditions;
k) "the Services" means the services to be supplied
under the Proposal;
2. Performance
a) Upon signing a copy of the Proposal, the Company accepts
the provision of the Services by the IF engineers as specified
in the Proposal and the Company shall grant IF, IF engineers
and employees and agents all the information and access to files,
records and access to all Company premises as the Company deems
necessary to enable the performance of the Services.
b) IF shall use reasonable endeavours to ensure that the Services
shall be performed according to the timetable contained in the
Proposal or as may be varied by mutual consent.
3. Public Funding Compliance Requirements
IF is in part public funded and therefore the DTI requires that
the Company:-
a) warrants that it has provided IF with full details of all
public funding provided to it in the last 3 years (to enable
IF to establish that the Company does not breach the de minimis
limit.)
b) must satisfy IF of the Company's financial viability, and
will provide IF with data requested to allow that evaluation
to be carried out.
c) acknowledges that IF is required to cascade the learning
process, performance and improvements through IF activities
including IF seminars, workshops, visits to the Company, and
details of process improvement shall be collated and used by
IF and the DTI
4. Severability
If any condition, clause or provision of these Conditions not
being of a fundamental nature be held to be unlawful or unenforceable
by a court in any proceedings, relating to the Conditions the
validity or enforceability of the remainder of the Conditions
shall not be affected thereby.
5. Confidentiality
a) Each of the parties is responsible for identifying any information
including know how which it regards as being confidential or
trade secret (“Confidential Information”) before
disclosure to the other party and each of the parties undertakes
to the other to keep confidential Confidential Information except
where:
i) the Confidential Information was already lawfully known,
or became lawfully known to either of the parties independently
of the performance of the Services;
ii) the Confidential Information is, or comes into, the public
domain other than due to wrongful use or disclosure by the parties;
iii) disclosure or use is necessary by either of the parties
for the proper and effective performance of the Services,
iv) the disclosure is required by law to any government, governmental
department, agency, regulatory or fiscal body or authority (whether
national or foreign) and their authorised agents (including
professional advisers).
b) IF shall safeguard from loss or damage every document or
thing supplied by or obtained from the Company for the purposes
of the Proposal and shall protect every such document or thing
from unauthorised use, disclosure or copying and shall forthwith
upon or earlier if the Company shall request return to the Company
in good and useable condition every such document and thing.
c) Each of the parties shall ensure that their respective employees,
agents and sub-contractors shall comply with the requirements
of this clause 5. The parties shall use the same standard of
care in relation to the information as if it were Confidential
Information of their own.
6. Amendments and Variations
No amendment or variation in the terms of the Contract will
be valid unless previously agreed in writing between IF and
the Company.
7. Payment
The Fee specified in the Proposal shall be payable within 14
days of receipt of the invoice which shall state the period
and amount of services for which payment is claimed.
8. Cancellation by the Company
Notice of any cancellation or delay must be received in writing,
at least 21 days prior to the commencement of the Services (a
cancellation or delay fee of £100 +VAT will be incurred).
Once within this period the Company shall be fully liable for
the entire Fee.
9. Health and Safety
IF shall require the company to complete and return an Activity
Meeting Customer Safety Questionnaire and exchange Health and
Safety policies prior to the commencement of any IF performance.
IF reserves the right to refuse to work in an environment which
fails to comply with statutory Health and Safety requirements
and prohibitions.
10. Liability, Indemnity and Insurance
a) IF shall not be liable for any loss of or damage caused either
to any physical property of the Company or its staff or agents
of any physical injury (including injury resulting in death)
sustained by the staff or agents of the Company other than by
reason of any negligent act or omission of IF, IF employees
or agent during the performance of the Services.
b) The Company shall indemnify IF against any claim, demand
or liability made against or incurred by IF or any agent of
IF in respect of any loss of, or damage to, any property of
the IF’s personnel or injury (including injury resulting
in death) sustained by IF during the performance of the Services
unless such loss, damage or injury is caused by the negligent
act or omission of IF or any of its staff or agents;
c) The Company shall be responsible for effecting suitable Public
Liability and Employer’s Liability insurance in respect
of the matters which are the subject of liability or indemnity
under these Conditions.
d)(i) IF does not warrant the suitability of the Proposal to
the Company and the Company shall be responsible for assessing
and satisfying itself as to the benefits (if any) to be achieved
by the Company in accepting the Proposal.
(ii) IF shall not be liable for any loss, damage, costs, legal
costs and professional and other expenses of any nature whatsoever
incurred or suffered by the Company whether direct or consequential
(including but without limitation any economic loss or other
loss of turnover profits business or goodwill) as a result of
any reliance placed by the Company on the contract.
e) Each provision of this clause 10 excluding or limiting liability
shall be construed separately, applying and surviving even if
for any reason one or other of those provisions is held inapplicable
or unenforceable in any circumstances and shall remain in force
notwithstanding the termination or expiry of this Contract.
11. Termination due to Insolvency
a) The Company shall notify IF in writing immediately if the
Company passes a resolution to wind-up or the court makes an
administration order or a winding-up order, or the company makes
a composition or arrangement with its creditors, or an administrative
receiver, receiver or manager is appointed by a creditor or
by the court, or possession is taken of any of its property
under the terms of a floating charge.
b) On receipt of the notice under paragraph (a) above or earlier
discovery by IF of the occurrence of any of the events described
in that paragraph, IF may, by notice in writing to the Company,
summarily terminate the Contract without compensation to the
Company and without any prejudice to any right of action or
remedy which may accrue to IF thereafter.
12. Termination for breach of Contract
If a party commits a material breach of the Contract and, in
the case of a breach which is capable of remedy, fails to remedy
such breach within 28 days of being required by the other party
in writing to do so, the injured party shall be entitled to
terminate the Contract with immediate effect by notice in writing
to the other party and without prejudice to any rights of the
parties accrued to the date of the determination of the Contract.
13. Cancellation by IF
IF shall be entitled to terminate the Contract by giving the
Company not less than 28 days' notice in writing to that effect
without prejudice to any rights or remedies of the Company for
breach of Contract.
14. Special Provisions
a) In the case of any conflict or inconsistency between these
Conditions and any conditions contained within the Proposal,
the latter conditions shall prevail.
b) Both parties acknowledge that business or other circumstances
may require IF to alter or amend the Proposal including the
Services or IF engineers to be provided to the Company.
c) IF reserves the right to alter, amend or add to these terms
and conditions from time to time providing copy of either such
alteration or amendment in writing to the Company.
15. Copyright and Property in Information
a) Nothing in the Contract or done under the Contract shall
be taken to diminish any IF copyright, patent rights or rights
to any other intellectual or industrial property which would
apart from this Contract vest in IF.
b) All copyright and other intellectual property rights in any
of the IF Materials belong absolutely to IF and IF reserves
all rights in all and any of them.
c) Following provision of the Services, certain materials, including
IF Materials, may be left on site with the Company for which
IF hereby grants the Company a licence, the form of which is
set out at Clause 16, subject to terms IF specifies, for the
Company to use such materials, together with know-how and processes
demonstrated, purely for the Company’s own internal business
and training purposes. The Company agrees to be bound by the
terms IF specifies as a condition to the grant of any such licence.
16. Intellectual Property Licence
a) Subject to the provisions of paragraphs (b), (c), (d) and
(e) below, IF grants to the Company a non-assignable, non-exclusive
royalty-free licence in the United Kingdom for ten (10) years
from the earlier of the first day of supply of the Services
or the date the Company signs the Proposal, to use the IF Materials
for the Company’s own internal business purposes, including
the following purposes :
i) taking a reasonable number of photocopies to be used only
for the purposes authorised under paragraphs (a)(iii), (a)(iv)
and (a)(v) below;
ii) loading or copying on to the Company’s information
technology systems;
iii) training of the Company’s employees;
iv) application of the IF process to other areas of the Company’s
own business only.
v) other uses with the prior written consent of IF from time
to time.
b) Nothing in this licence shall prevent IF from developing,
exploiting, using, dealing with or disposing of or manufacturing,
assembling, selling, leasing or producing products using the
IF Materials as IF sees fit in the absolute discretion of IF.
c) The Company agrees that the Company will not release, reveal,
sell, dispose of or disclose in any way the IF Materials or
any of them to any third party. In the event that the Company
breaches the terms of this paragraph (c) then IF may terminate
this licence immediately on notice to the Company.
d) In the event that this licence is terminated for any reason
the IF Materials, including any copies of the IF Materials made
by the Company, shall immediately be returned to IF by the Company.
Any copies of the IF Materials stored on the Company’s
information technology systems, including those stored on CD-ROM
format or other non-printed media shall be destroyed by the
Company.
e) The Company shall not assign, sub-licence, charge, sub-contract
or otherwise transfer any of the Company’s rights under
this licence without the prior written consent of IF.
17. Non Solicitation
a) The Company during the term of the performance of the Services
and a period of 8 months after
expiry or termination however caused shall not solicit IF staff
who have been employed or
engaged in the provision of the Services. For the purposes of
this clause ‘solicit’ means the
soliciting of such a person with a view to engaging such person
as an employee, director, sub- contractor or independent contractor.
b) In the event that the Company is in breach of a clause 17(a)
above then the Company shall pay to IF by way of liquidated
damages an amount equal to 20 per cent. of the gross annual
salary (as at the time of the breach) of the person so employed
or engaged. This provision shall be without prejudice to SMMT
IF’s ability to seek injunctive relief.
c) The Company hereby acknowledges and agrees with the formula
specified in clause 17(b) above as a reasonable estimation of
the loss which would be incurred by IF as a result of the loss
of the person so employed or engaged.
18. The Contracts (Rights of Third Parties) Act 1999
A Person who is not a party to this Contract has no rights under
the Contracts (Rights of Third Parties) Act 1999 to enforce
any term of this Contract but this does not affect any rights
or remedy of a third party which exists or is available apart
from that Act.
19. Entire Agreement
The Proposal and these Conditions shall constitute the whole
of the terms agreed between the parties hereto in respect of
the subject matter of this Contract and the Company hereto acknowledges
that in entering into this Contract it has not relied on any
representations or warranties other than as expressly set out
in the Proposal and any other said warranties or representations
(whether express or implied) are hereby excluded.
20. Law and Jurisdiction
The Contract shall be governed by, and construed in accordance
with, the provisions of English law and shall be subject to
the exclusive jurisdiction of the English courts to which the
parties to the Contract hereby submit.
21. Data Protection
IF may use the information obtained in the course of this Contract
for marketing, evaluation purposes and reference purposes. IF
may disclose your information to third parties. IF may share
your information with other SMMT departments. SMMT IF or SMMT
may contact the Customers directly by mail, telephone, email
or fax with information regarding, forthcoming IF events and
SMMT goods and services amongst other things.
22. IF Registered Office
The Society of Motor Manufacturers and Traders Limited, Forbes
House, Halkin Street, London, SW1X 7DS. Registered in England,
Number 74359. |
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