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PARTIES & BACKGROUND

AGREED TERMS

1. This Contract is made up of the following:

(a) The Conditions (including its Schedules).

(b) any Contract Details.

2. If there is any conflict or ambiguity between the terms of the documents listed in paragraph 1, a term contained in a document higher in the list shall have priority over one contained in a document lower in the list.

This Contract has been entered into when the Member accepts The Business Culture HEY's terms and conditions on The Business Culture HEY's website.

THE CONDITIONS

1. Interpretation

The following definitions and rules of interpretation apply in these Conditions.

1. Definitions:

1. The “First Payment Date”, “Renewal Payment” and “Termination Payment” shall have the meaning in accordance with clause 6.
2. Interpretation:
   1. A reference to legislation or a legislative provision:
      1. is a reference to it as amended, extended, or re-enacted from time to time; and
      2. shall include all subordinate legislation made from time to time under that legislation or legislative provision.
   2. 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.
   3. A reference to writing or written includes emails but not fax.

2. Commencement and term 
   1. The Contract shall commence (or be deemed to have commenced) on the date when the Member registers with THE BUSINESS CULTURE HEY  (“Contract Date”) and shall continue, unless terminated earlier in accordance with its terms, until either party gives to the other not less than one calendar month written notice to terminate, expiring on or after the Initial Term .
   2. The date of termination or expiry of the Contract being the “Termination Date”. 
3. Basis of contract
   1. These Conditions apply to the Contract to the exclusion of any other terms that the Member seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
   2. Any Contract Details apply to this Contract only if they are entered into between the parties in accordance with these Conditions. Any written quotation given by THE BUSINESS CULTURE HEY shall not constitute an offer, and is only valid for a period of 10 Business Days from its date of issue. Any written order for Services or purchase order from the Member constitutes an offer by the Member for the provision of services by THE BUSINESS CULTIRE under these Conditions and shall only be deemed accepted when THE BUSINESS CULTURE HEY issues written acceptance to the Member. 
   3. Any samples, drawings, descriptive matter or advertising issued by THE BUSINESS CULTURE HEY, and any descriptions or illustrations contained in THE BUSINESS CULTURE HEY's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
4. Supply of Services
   1. THE BUSINESS CULTURE HEY shall supply the Services to the Member from the Services Start Date in accordance with the Contract. 
   2. Subject to the remaining provisions of this Contract, in supplying the Services, THE BUSINESS CULTURE HEY shall:
      1. perform the Services with reasonable care and skill;
      2. use reasonable endeavours to perform the Services in accordance with the Specification in all material respects;
      3. ensure that the Deliverables, and all goods, materials, standards and techniques used in providing the Services are of satisfactory quality and are fit for purpose at the time of delivery or performance of those Deliverables or Services;
      4. comply with applicable laws in force at the time of delivery or performance of the Deliverables or Services, provided that THE BUSINESS CULTURE HEY shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract.
      5. observe all reasonable health and safety rules and regulations and security requirements that apply at any of the Member's premises and have been communicated to THE BUSINESS CULTURE HEY, provided that THE BUSINESS CULTURE HEY shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract;
      6. take reasonable care of all Member Property in its possession and make any moveable items available for collection by the Member on reasonable notice and request, always provided that THE BUSINESS CULTURE HEY may destroy the Member Property if the Member fails to collect the Member Property within a reasonable period after termination of the Contract; 
      7. use reasonable endeavours to meet any performance dates specified in the Specification or any Contract Details, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
   3. THE BUSINESS CULTURE HEY reserves the right to amend the Specification and any Contract Details if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and THE BUSINESS CULTURE HEY shall notify the Member in any such event.
   4. For the avoidance of doubt, THE BUSINESS CULTURE HEY provides no warranty, guarantee or other assurance that the Services or Deliverables will operate, configure, be functional or compatible with any third party software, hardware or other applications that are produced, developed or upgraded after THE BUSINESS CULTURE HEY has provided the Services to the Member. THE BUSINESS CULTURE HEY cannot be responsible or liable for the products or services of a third party beyond its reasonable control.     
5. Member’s obligations 
   1. The Member shall:
      1. ensure that the terms of any Contract Details it provides and any information it provides in the Specification are complete and accurate;
      2. co-operate with THE BUSINESS CULTURE HEY in all matters relating to the Services;
      3. provide THE BUSINESS CULTURE HEY, its employees, agents, consultants and subcontractors, in a timely manner with access to the Member’s premises, office accommodation and other facilities as reasonably required by THE BUSINESS CULTURE HEY;
      4. provide to THE BUSINESS CULTURE HEY, in a timely manner, such information, documents, equipment and materials as THE BUSINESS CULTURE HEY may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
      5. prepare the Member’s premises for the supply of the Services;
      6. obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
      7. keep all THE BUSINESS CULTURE HEY Property at the Member’s premises in safe custody at its own risk, maintain THE BUSINESS CULTURE HEY Property in good condition until returned to THE BUSINESS CULTURE HEY, and not dispose of or use THE BUSINESS CULTURE HEY Property other than in accordance with THE BUSINESS CULTURE HEY's written instructions or authorisation; and
      8. comply with any additional obligations as set out in the Specification.
   2. If THE BUSINESS CULTURE HEY's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Member or failure by the Member to perform any relevant obligation (Member Default):
      1. without limiting or affecting any other right or remedy available to it, THE BUSINESS CULTURE HEY shall have the right to suspend performance of the Services until the Member remedies the Member Default, and to rely on the Member Default to relieve it from the performance of any of its obligations in each case to the extent the Member Default prevents or delays THE BUSINESS CULTURE HEY's performance of any of its obligations;
      2. THE BUSINESS CULTURE HEY shall not be liable for any costs or losses sustained or incurred by the Member arising directly or indirectly from THE BUSINESS CULTURE HEY's failure or delay to perform any of its obligations as set out in this clause 5.2;
      3. THE BUSINESS CULTURE HEY shall be entitled to payment of the Charges despite any such prevention or delay; and
      4. the Member shall reimburse THE BUSINESS CULTURE HEY on written demand for any costs or losses sustained or incurred by THE BUSINESS CULTURE HEY arising directly or indirectly from the Member Default.
6. Charges and payment
   1. In consideration for the provision of the Services, the Member shall pay the Charges subject and in accordance with this clause. The Charges for the Services shall be as set out in these Conditions.
   2. The Member shall pay the Retainer Charge to THE BUSINESS CULTURE HEY:
      1. on the Contract Date or, if later, the last Business Day of the calendar month in which the Contract Date falls (“The First Payment Date”);
      2. on each subsequent one calendar month anniversary of The First Payment Date (each a “Renewal Payment”); and 
      3. on the Termination Date (the “Termination Payment”).
   3. The Member shall pay each of THE BUSINESS CULTURE HEY invoices due and submitted to it, on the invoice date to be collected by monthly Direct Debit as agreed between the parties or otherwise within 30 days of receipt by the Member. Time for payment shall be of the essence of the Contract. The Termination Payment shall be apportioned on a time basis so that the invoice is attributable to the period from the last Renewal Payment (actually received by THE BUSINESS CULTURE HEY) up until the Termination Date.
   4. If the Member fails to make a payment due to THE BUSINESS CULTURE HEY under the Contract by the due date, then, without limiting THE BUSINESS CULTURE HEY's remedies under clause 9:
      1. the Member 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 6.4 will accrue each day at 6% a year above the Bank of England’s base rate from time to time, but at 6% a year for any period when that base rate is below 0%;
      2. THE BUSINESS CULTURE HEY may suspend all Services until payment has been made in full.
   5. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
   6. Following successful completion of the Initial Term, THE BUSINESS CULTURE HEY reserves the right to increase the Retainer Charge on a monthly basis in line with the percentage increase in the cost to THE BUSINESS CULTURE HEY of any, software, hardware, materials, tools, equipment or services procured by THE BUSINESS CULTURE HEY from third parties for the provision of the Services and the first such increase may take effect on the first Renewal Payment falling due after the end of the Initial Term. Any increase in the Retainer Charges under this clause shall be notified to the Member in writing and clause 12.5 of the Conditions shall be interpreted accordingly. 
   7. Without prejudice to clause 6.6, the Services will be regularly reviewed to meet the needs and objectives of the Member. The Retainer Charges may be increased or decreased following such review by mutual agreement to reflect a change in the Services agreed to be provided by THE BUSINESS CULTURE HEY to the Member in accordance with the Contract. 
7. Intellectual property
   1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than the Intellectual Property Rights in any of the Member Property) shall be owned by THE BUSINESS CULTURE HEY.
   2. The Member hereby assigns to THE BUSINESS CULTURE HEY all existing and future Intellectual Property Rights in the Works and all materials embodying these rights to the fullest extent permitted by law. Insofar as they do not vest automatically by operation of law or under this Contract, the Member holds legal title in these rights and inventions on trust for THE BUSINESS CULTURE HEY.
   3. THE BUSINESS CULTURE HEY grants to the Member, or shall procure the direct grant to the Member of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to use the Deliverables (excluding materials provided by the Member) for the purpose of receiving and using the Services and the Deliverables in its business. The Member shall not sub-license, assign or otherwise transfer the rights granted in this clause 7.3.
   4. The Member grants THE BUSINESS CULTURE HEY a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Member to THE BUSINESS CULTURE HEY for the term of the Contract for the purpose of providing the Services to the Member.
   5. The Member waives any moral rights in the Works to which they are now or may at any future time be entitled under Chapter IV of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
   6. The Member undertakes, at the expense of THE BUSINESS CULTURE HEY, at any time either during or after the of termination or expiry of the Contract, to execute all documents, make all applications, give all assistance and do all acts and things as may, in the opinion of THE BUSINESS CULTURE HEY, be necessary or desirable to vest the Intellectual Property Rights in, and to register them in, the name of THE BUSINESS CULTURE HEY. The Member irrevocably appoints THE BUSINESS CULTURE HEY to be their attorney in their name and on their behalf to execute documents, use the Member's name and do all things which are necessary or desirable for THE BUSINESS CULTURE HEY to obtain for itself or its nominee the full benefit of this clause.
   7. The Member acknowledges that, except as provided by law, no further fees or compensation other than those provided for in this Contract are due or may become due to the Member in respect of the performance of their obligations under this clause 7.
8. Limitation of liability
   1. The limits and exclusions in this clause reflect the insurance cover THE BUSINESS CULTURE HEY has been able to arrange and the Member is responsible for making its own arrangements for the insurance of any excess loss.
   2. References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
   3. Nothing in this clause 8 shall limit the Member's payment obligations under the Contract.
   4. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
      1. death or personal injury caused by negligence;
      2. fraud or fraudulent misrepresentation; or
      3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
   5. Subject to clause 8.4 (Liabilities which cannot legally be limited), THE BUSINESS CULTURE HEY's total liability to the Member for all loss or damage shall not exceed the Charges for the Services actually received by THE BUSINESS CULTURE HEY and THE BUSINESS CULTURE HEY shall not be liable for any:
      1. loss of profits
      2.  loss of sales or business.
      3.  loss of agreements or contracts.
      4.  loss of anticipated savings.
      5.  loss of use or corruption of software, data or information.
      6.  loss of or damage to goodwill; and
      7.  indirect or consequential loss, 

 such losses being wholly excluded from the Contract.

8. THE BUSINESS CULTURE HEY has given commitments as to compliance of the Services with relevant specifications in clause 4. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
9. Unless the Member notifies THE BUSINESS CULTURE HEY that it intends to make a claim in respect of an event within the notice period, THE BUSINESS CULTURE HEY shall have no liability for that event. The notice period for an event shall start on the day on which the Member 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.
10. This clause 8shall survive termination of the Contract.
11. Termination
    1. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
       1. the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
       2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
       3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
       4. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
    2. Without affecting any other right or remedy available to it, THE BUSINESS CULTURE HEY may terminate the Contract with immediate effect by giving written notice to the Member if the Member fails to pay any amount due under the Contract on the due date for payment, or there is a change of Control of the Member. 
    3. Without affecting any other right or remedy available to it, THE BUSINESS CULTURE HEY may suspend the supply of Services under the Contract or any other contract between the Member and THE BUSINESS CULTURE HEY if
       1. the Member fails to pay any amount due under the Contract on the due date for payment; 
       2. the Member becomes subject to any of the events listed in clause 9.1.3 to clause 9.1.4, or THE BUSINESS CULTURE HEY reasonably believes that the Member is about to become subject to any of them; and
       3. THE BUSINESS CULTURE HEY reasonably believes that the Member is about to become subject to any of the events listed in clause 9.1.2.
12. Consequences of termination
    1. On termination or expiry of the Contract:
       1. the Member shall immediately pay to THE BUSINESS CULTURE HEY all of THE BUSINESS CULTURE HEY's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, THE BUSINESS CULTURE HEY shall submit an invoice, which shall be payable by the Member immediately on receipt;
       2. the Member shall return all THE BUSINESS CULTURE HEY Property and any Deliverables which have not been fully paid for. If the Member fails to do so, then THE BUSINESS CULTURE HEY may enter the Member’s premises and take possession of them. Until they have been returned, the Member shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
    2. Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
    3. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
13. Data protection.
    1. Both parties will comply with applicable requirements of the Data Protection Legislation.
    2. The Member is responsible for complying with their data protection obligations and any laws, statutes, regulations of codes from time to time in force and applicable to the Member. 
    3. THE BUSINESS CULTURE HEY are not responsible for the Member’s compliance with clause 11.2 nor accepts any responsibility for any liability, damage or loss to the Member or any third party resulting from the Member’s failure to comply with its legal obligations.
14. General
    1. Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
    2. Assignment and other dealings.
       1. THE BUSINESS CULTURE HEY may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
       2. The Member shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of THE BUSINESS CULTURE HEY.
    3. Confidentiality.
       1. Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.3.2.
       2. Each party may disclose the other party’s confidential information:
          1. to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 12.3; and
          2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
       3. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
    4. Entire agreement.
       1. 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.
       2. 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.
       3. Nothing in this clause shall limit or exclude any liability for fraud.
    5. Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
    6. 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 default. 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.
    7. Severance If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this Contract deleted under this clause 12.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
    8. Notices.
       1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number or sent by email to its address set out at the front of these Conditions.
       2. Any notice shall be deemed to have been received:
          1. if delivered by hand, at the time the notice is left at the proper address;
          2. if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or 
          3. if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 12.8.2.3,business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt. 
       3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
    9. Third party rights.
       1. Unless it expressly states otherwise, 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.
       2. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
    10. 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.
    11. Jurisdiction. Each party irrevocably agrees that the courts of England 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.

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