Interpretation
Definitions:
"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.
Interpretation:
A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
Supply of services
Form shall supply the Services to the Customer from the date of registration on the Sustain programme.
In supplying the Services, Form shall:
Customer's obligations
The Customer shall:
The Customer warrants:
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:
Intellectual property
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 and expenses
The provision of the Services by Form to the Customer shall be free of charge.
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.
Insurance
For the period of one year 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:
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 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 Sustain participants, for:
Termination
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:
On termination of the Contract for whatever reason:
General
Force majeure. 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.
Confidentiality.
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:
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.
Entire agreement.
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.
Dispute resolution. 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.
Waiver.
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.
Severance. 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.
Notices.
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.
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.
Governing law. 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.
Jurisdiction. 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.