THE FOOD AND DRINK FORUM LIMITED TERMS & CONDITIONS
Our standard terms and conditions are as follows:
In this document the following words shall have the following meanings:
Agreement: means the agreement based on these terms and conditions between the Company and the Client for the performance of an agreed Service;
Client: means the person, group of people, charity, firm or company receiving or using a service which is provided free, fully or part funded or at cost from the Company;
Client Property: all documents, books, manuals, materials, records, correspondence, papers and information (on whatever media and wherever located) relating to the Business or affairs of the Client [or Group Company] or its [or their] customers and business contacts, and any equipment, keys, hardware or software provided for the Forum’s use by the Client during the Engagement, and any data or documents (including copies) produced, maintained or stored by the Forum on the Client or the Forum’s computer systems or other electronic equipment during the Engagement.
Company (or Forum): means The Food and Drink Forum Limited and its employees and or a contracted Delivery Partner or supplier or substitute company and its employees, agents or subcontractors for the delivery of a service within a project.
Confidential Information: information in whatever form (including without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, customers, products, affairs and finances of the Client [or any Group Company] for the time being confidential to the Client [or any Group Company] and trade secrets including, without limitation, technical data and know-how relating to the Business of the Client [or of any Group Company] or any of its [or their] suppliers, customers, agents, distributors, shareholders, management or business contacts, including in particular (by way of illustration only and without limitation) [EXAMPLES] and including (but not limited to) information that the Forum creates, develops, receives or obtains in connection with his Engagement, whether or not such information (if in anything other than oral form) is marked confidential.
Default: means any breach of the obligations of either party (including but not limited to fundamental breach or breach of a fundamental term) and/or any actionable default, act, omission, negligence or mis-statement of either party, its employees, agents or sub-contractors in connection with or in relation to the subject of the Service and or Agreement and in respect of which such party is liable to the other.
Engagement: the engagement between the Company, its employees and or the contracted Delivery Partner and employees, and the Client on the terms of this agreement.
Intellectual Property Rights: means any and all design rights, utility models, patents, inventions, service marks, logos, business names, trademarks (whether registered or unregistered), internet domain names, copyright, rights in databases, computer software, rights to use, domain names, data, source codes, reports, drawings, specifications, know-how, trade secrets, confidential information, software designs and/or other materials, semi-conductor rights, topography rights, rights in the nature of unfair competition and the right to sue for passing off and any other equivalent rights whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world together with all or any related goodwill;
Payment of Fees or Charges: An invoice will be raised and issued to a Client for payment. Payment terms are 30 days from the invoice date.
Services: means the services provided by the Company to the Client including, but not limited to;
- free business support; mentoring, membership or technical services,
- fully or part funded business support via a funding stream and or project
- commercial fee based services i.e. technical support, membership,
Site: means the premises at the address for delivery of the Services set out in the Terms of engagement or services;
Terms of Engagement or Services: means the document/s setting out the Engagement, Actions, Services and the rates, hours and or outcomes where applicable, for such work or whether services are fully or part funded by a project. Fully or part funded projects will have their own requirements and project documentation and by subscribing to such projects, the client is obliged to fulfil their obligations, consent to the project requirements and provide the necessary evidence of support received together with evidence of outcomes.
Termination Date: means the date specified in the Terms of Engagement or Services or activity documents when this Agreement shall end unless terminated earlier or as per the last date as identified by the project or funded programme.
Documents: all original, where required, records, reports, documents, papers, drawings, designs, transparencies, photos, graphics, logos, typographical arrangements, software, and all other materials in whatever form, including but not limited to hard copy and electronic form, prepared by the Company in the provision of the Services.
The headings in this agreement are inserted for convenience only and shall not affect its construction.
A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
- Service Agreement
The Service shall [commence OR be deemed to have commenced] on the Commencement Date and shall continue unless and until terminated or as stated upon Service/Project documents: or when the Service outcomes have been met; or as provided by the terms of the agreement; or by either party giving to the other not less than one weeks’ prior written notice either by email, letter, or project documentation evidence.
- Duties and Obligations – The Company
During the Engagement the Company shall:
- Provide the Services with all due care, skill and ability and use best endeavours to promote the interests of the Client;
- Deliver the agreed time or outcomes as per the Service Agreement to the carrying out of the Services together with such additional time if any as may be necessary for their proper performance;
- In respect to commercial/fee based services, the Company shall use reasonable endeavours to retain personnel allocated to provide the Services but where it has no reasonable alternative but to replace such personnel, the Company shall give the Client reasonable prior written notice, where possible, and will use reasonable endeavours to replace the personnel with personnel of similar experience and qualification.
- If the Company is unable to provide the Services due to illness or injury the Client will be informed of the fact as soon as reasonably practicable and no further fees will be applied where the Service cannot continue. The Company shall use reasonable endeavours to support the Client find alternative suppliers.
- The Company shall use reasonable endeavours to ensure that employees are available at all times on reasonable notice to provide such assistance or information as the Client may require.
3.1 The Company shall not:
- a) have any authority to incur any expenditure in the name of or for the account of the Client; or
- b) have the authority to bind the Client.
3.2 The Company shall;
- comply with all reasonable standards of safety and comply with the Client’s health and safety policies and procedures from time to time in force at the premises where the Services are provided and report to the Client any unsafe working conditions or practices.
- Comply with the Client’s policies on social media, use of information and communication systems, anti-harassment and bullying, no smoking, dress code and confidentiality.
- comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010.
3.3 Duties and Obligations – The Client
During the Engagement the Client shall:
- The Client shall be deemed to have accepted any service proposals or agreements by signing the relevant Service Agreement or Project or other documentation requesting information, a service or support from the Company
- The Company will not commence work until the customer has accepted these Terms and Conditions as well as the instructions including, but not limited to, a proposed timeline, service or an estimate of fees which will be set out in an accompanying document.
- The Terms of Engagement or Services will be the best estimation of time or the required time required to meet the service requirements. For fully or part funded projects Clients are expected to undertake 12 hours of support in a given timeframe and before the project end date. For Commercial Services, if further time is required above the estimated time, the Client will be consulted before any further activity takes place.
- The Company may, at its discretion, commence work prior to receiving a written or signed proposal as defined in 3.2. In these circumstances the client agrees that the Company’s Term and Conditions shall wholly and solely apply.
- The Company shall not be liable for failure to complete any work within a proposed timeline or to the expectation of the Client.
- The Client shall provide to the Company access to such resources during normal business hours and shall procure all licences as the Company shall require to perform its obligations under the Agreement.
- Client Co-operation:
The successful and timely performance by the Company of the Services is dependent upon the Client’s prompt performance of its obligations under the Agreement. The Client agrees to make available to the Company an authorised representative who will:
- Be authorised to make binding decisions for the Client with regard to the Agreement, including any change to the Services;
- Review all documents, including the draft Deliverables, provided by the Company for review so that corrections or changes may be made by the Company; and
- Provide the Company with all reasonable information and documentation concerning the Client’s operations and activities which may be required by the Company for the performance of the Services.
- The Client will be responsible and liable for all third party actions or omissions where such third party are under the control of the Client.
- Where participation by, or access by the Company to, the Client’s staff is necessary for the performance of the Services, the Client agrees that such staff will have the appropriate skill, qualifications and experience and will be available at the times agreed by the parties.
- The Client shall pay the Forum a fee either a fixed rate or daily rate or as outlined in an agreement for the service required in addition to any VAT due. The Company shall submit to the Client an invoice that provides details of the service delivered by the Company or Delivery Partner or supplier or any Substitute on the Company’s behalf, has worked during the month or period of time, the Services provided and the amount of the fee payable plus VAT, if applicable, for the Services during that period.
- In consideration of the provision of the Services during the delivery of the Service agreement, the Client shall pay each invoice submitted by the Company within 30 days of the invoice date.
- Payment in full or in part of the fees claimed shall be without prejudice to any claims or rights of the Client against the Company in respect of the provision of the Services.
- All sums payable are stated exclusive of UK Value Added Tax and/or equivalent taxes in other countries which will be added and payable by the Client at the applicable rate and all sums due shall be paid without set-off, counter claim or deduction.
- Late payment
Where the payment of any invoice or any part of an invoice is not made in accordance with an Agreement made between the Company and the Client, the Company, without prejudice to its other rights under an Agreement or in law, shall be entitled to:-
- Charge interest ( both before and after judgement) on the outstanding amount at the rate of 4 per cent per annum above the Company’s bank’s base rate from the Due Date until the date of payment is received in full; and/or
- Suspend and/or withhold any services or documents to be performed by the Company for the Client under the Agreement or any other arrangement; and/or
- Terminate the Agreement.
- Fully or Part Funded Services and Projects
Where Clients engage in Services Part or Fully funded by a third party such as but not limited to the UK Government or European Union they agree to provide and understand the requirements of such funding or projects which require certain conditions placed upon the Client in terms of completed documentation, authorised signatures and dates, Client business details, enrolment, outcomes and output forms and evidence as to the support given. In addition, the Client must verify themselves as a SME in accordance with EU definitions and provide evidence as necessary and declare previous state aid received.
- Site regulations
The Company and the Client agree that when the Company’s staff are present on the Client’s premises they shall be fully appraised by the Client of all rules, regulations and policies relating to the health and safety of personnel and security on those premises and they shall comply with such rules, regulations, procedures and policies. The Client is entitled to deny access to the Site to any of the Company’s staff who in the Client’s reasonable opinion constitute a threat to the Client’s security or that of its Site, systems or equipment.
- Scope of the Services
The nature and extent of the Services shall be set out in the terms of engagement or services but at any time prior to completion of the Services either party may request a change to them by notice in writing to the other party. Each party has the right to reject the change request but shall not do so unreasonably. The Company shall provide the Client with an estimate of the fees for the proposed changed Services and, in cases of change requests made by the Client, the Company reserves the right to charge the Client for costing the change request at its then daily rates. If the parties agree to implement the change, details of the change and the fees, timetable of work and/or delivery dates shall be set out in a further Terms of engagement or services signed by both parties and shall then be deemed to be incorporated into the Agreement.
Where the Services result in the production of reports, software or other materials (Deliverables) such Deliverables shall be submitted to the Client in draft form for the Client’s review and the Client shall provide the Company with written feedback on those Deliverables. The Company will incorporate agreed changes to the draft Deliverables and then issue them to the Client. If the Client does not provide any written feedback in relation to the Deliverables within fourteen days of issue, those Deliverables shall be deemed to be in final form. The Services shall be deemed to be completed upon the issue of all Deliverables in final form and/or upon the completion of all activity set out in the Terms of engagement or services.
The Company shall perform the Services with reasonable care and skill. The Client will promptly notify the Company of any breach of the warranties contained in the Agreement as soon as practicable upon becoming aware of it and use reasonable endeavours to do so within 14 days. The Company will be entitled and obliged to remedy such breach within a reasonable time from receipt of notification (which shall not be greater than 30 days unless otherwise agreed between the parties). This Clause 14 states the Company’s entire liability with regard to any breach of the warranties contained in the Agreement.
- No implied terms
Except as expressly stated in these terms and conditions, all warranties, undertakings, duties, terms and conditions, whether express or implied by statute, common law or otherwise (including but not limited to fitness for purpose) are excluded to the fullest extent permitted by law.
- Rights in the Deliverables
To the extent that the deliverables or any document, software, data or other material developed by the Company in the course of performing the Services constitutes an original work or includes or incorporates a pre-existing work or proprietary item of the Company all right, title and interest (including all Intellectual Property Rights) shall be and remain vested in the Company. Subject to payment of all fees due under the Agreement, the Company grants to the Client a non-exclusive licence to use the same to the extent necessary to enable the Client to possess and use the Deliverables for its internal business only.
- Intellectual Property
The Client and the Company shall retain all right, title and interest (including all Intellectual Property Rights) in all documents, software, data or other materials which constitute the pre-existing works or proprietary items belonging to them respectively and which are provided for use in connection with the performance of the Services. The Client grants to the Company a non-exclusive royalty free licence to use these items belonging to the Client to perform the Services. Upon termination of the Agreement the Company shall return to the Client or destroy, at the Client’s option, such documents, software, data or other materials, provided that if the Client does not notify the Company of its election within one (1) month following termination, the Company shall be entitled to dispose of those items in any reasonably appropriate manner. The Company hereby assigns to the Client all existing and future Intellectual Property Rights in the Works and the Inventions 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 agreement, the Forum holds legal title in these rights and inventions on trust for the Client.
The Company undertakes:
- To notify to the Client in writing full details of any Inventions promptly on their creation;
- To keep confidential details of all Inventions;
- Whenever requested to do so by the Client and in any event on the termination of the Engagement, promptly to deliver to the Client all correspondence, documents, papers and records on all media (and all copies or abstracts of them), recording or relating to any part of the Works and the process of their creation which are in his possession, custody or power;
- Not to register nor attempt to register any of the Intellectual Property Rights in the Works, nor any of the Inventions, unless requested to do so by the Client; an
- To do all acts necessary to confirm that absolute title in all Intellectual Property Rights in the Works and the Inventions has passed, or will pass, to the Client.
- The Company warrants to the Client that:
- It has not given and will not give permission to any third party to use any of the Works or the Inventions, nor any of the Intellectual Property Rights in the Works;
- It is unaware of any use by any third party of any of the Works or Intellectual Property Rights in the Works; and
- The use of the Works or the Intellectual Property Rights in the Works by the Client will not infringe the rights of any third party.
- Intellectual Property indemnity
Subject to the terms of this Agreement the Company shall indemnify the Client against any loss, claims, damages or expenses (including reasonable costs) that may be incurred or suffered by the Client in respect of any claim or action that the possession or use of the Deliverables by the Client in the manner envisaged by the Agreement infringes the Intellectual Property Rights of any third party (an Intellectual Property Infringement) provided that the Client:
- gives notice to the Company of any Intellectual Property Infringement as soon as reasonably practicable on becoming aware of it;
- gives the Company the conduct of the defence to and any settlement negotiations in relation to any claim or action in respect of any Intellectual Property Infringement and does not at any time admit liability or attempt to settle or compromise the claim or action without prior consultation with and written consent of the Company which shall not be unreasonably withheld or delayed; and
- acts in accordance with the reasonable wishes of the Company and gives the Company such assistance as the Company shall reasonably require in respect of the conduct of the defence.
- Neither party excludes or limits liability to the other party for:
death or personal injury caused by its negligence or that of its subcontractors or agents;
- fraud; or
- breach of the implied terms as to title as set out in section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982.
- Limitation of liability
Subject always to clause 22, the entire aggregate liability of the Company under or in connection with the Agreement, whether for tort (including negligence) misrepresentation, breach of contract, breach of common law or otherwise, shall not exceed one hundred percent (100%) of the fees paid to the Company by the Client in any twelve month period prior to the relevant claim arising.
Subject to clause 22 in no event shall the Company be liable for:
a) indirect, pure economic or consequential loss or damage;
- b) or expenses or loss of profits; or
- loss of revenue, loss of contracts or loss of opportunity; or
- loss of or damage to goodwill; or
- loss of anticipated savings or opportunity; or
- loss of or loss of use of data and/or corruption of data; or
- business interruption; or
- aggravated, punitive, exemplary and/or special damages; or
- loss or damage incurred by the Client as a result of third party claims; or
- any loss or damage to the extent that it is caused by or results from any use of the Deliverables by the Client in any manner other than that for which they were provided.
If for any reason the exclusion of liability in clause 24 is void or unenforceable, in whole or in part, the Company’s total liability for all loss or damage under the Agreement shall be as provided in clause 23. Each of the limitations and exclusions in clauses 23 and 24 is a separate limitation or exclusion which shall apply and survive even if, for any reason, one or other of them is held inapplicable or unreasonable in any circumstances. The limitations and exclusions in this Agreement shall survive any termination or expiry of this Agreement.
The Company shall effect and maintain adequate insurance cover at its own cost with a reputable insurance company to cover the liability accepted by it under the terms of the Agreement and shall, at the Client’s reasonable request, produce reasonable evidence of the insurance policy.
The client shall be responsible for ensuring IT security through the use of subcontractors applying and in accordance with industry best practices including the ISO27000 Series in connection with the performance of its obligations.
Unless already known or in the public domain or required by law the parties undertake at all times to keep confidential and not to use or to disclose to any third party without the other party’s prior written consent any confidential information supplied by the other party or obtained as a result of the Agreement (or any discussions prior to execution of the Agreement) including all information (in whatever form) relating to the other party’s business, technology and customers and the terms of the Agreement. The parties shall procure that any third party or subcontractor to whom information is disclosed pursuant to the Agreement is made aware of and complies with obligations of confidentiality equivalent to those set out in these terms and conditions.
The parties agree that information is not to be regarded as confidential information and that the receiving party will have no obligation with respect to any information which that party can demonstrate:-
- was already known to it and at its free disposal prior to its receipt from the disclosing party;
- was subsequently disclosed to it lawfully by a third party who did not obtain it (whether directly or indirectly) either from the disclosing party or under any obligation of confidence;
- was in the public domain at the time of receipt by the receiving party or had subsequently entered into the public domain other than by reason of the breach of the provisions of this Clause or of any obligation of confidence;
- is disclosed by the receiving party in compliance with a legal requirement of a Government agency or otherwise where disclosure is required by the operation of law, on condition that it gives the other party reasonable prior written notice of the proposed disclosure to allow that party to intervene.
- Breach of confidence
Each party shall promptly inform the other if it becomes aware of any breach of confidence by any person and shall give the other party all reasonable assistance in connection with any proceedings which it may institute against such person.
- Termination – Default
Either party may terminate the Agreement forthwith by notice in writing to the other party where the other Party has committed a material Default and where such Default is capable of remedy has failed to remedy such Default within thirty (30) days of receiving notice specifying the Default and requiring its remedy.
- Termination – insolvency
Either party may terminate the Agreement forthwith by notice in writing to the other party if the other party is unable to pay its debts as they fall due or if any action, application or proceeding is made with regard to it for:
26.1 a voluntary arrangement or composition or reconstruction of its debts;
- its winding-up or dissolution;
- the appointment of a liquidator, trustee, receiver, administrative receiver, administrator or similar officer;
- any similar action, application or proceeding in any jurisdiction to which it is subject.
Unless terminated earlier the Agreement shall continue until the Services have been fully performed and all fees and expenses have been paid.
- Consequences of termination
Termination of the Agreement shall not prejudice or affect any right of action or remedy which shall have accrued or shall accrue to either party and all provisions which are to survive this agreement or impliedly do so shall remain in force and in effect.
- Force majeure
Neither party shall be liable for any delay or failure to perform its obligations under the Agreement where such delay or failure is due to circumstances beyond its control (Force Majeure Event) provided that as soon as reasonably possible after the start of the Force Majeure Event, the affected party notifies the other party of the Force Majeure Event, the date on which it started, its anticipated duration and the anticipated effect of the Force Majeure Event on the affected party’s ability to perform its obligations.
- Data Protection
Each party undertakes to the other party to comply with the General Data Protection Regulations (GDPR) 2018 and shall procure that it shall observe the provisions of that Data Protection Act 1988 and the GDPR 2018.
The relationship of the Company to the Client will be that of independent contractor and nothing in this agreement shall render an employee of the Company an employee, worker, agent or partner of the Client and the Company shall not hold himself out as such.
- Third Parties
A person who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of the Agreement.
Any notice to be given under the Agreement must be in writing and delivered to the registered office address or principal place of business of the party to be served and shall be deemed served two days after despatch by first class post or immediately on delivery if hand delivered or by email.
- Variation andwaiver
No failure, delay, relaxation or forbearance on the part of either party in exercising any power or right under the Agreement shall operate as a waiver of such power or right or of any other power or right. No variation of this agreement or of any of the documents referred to in it shall be effective unless it is in writing and signed by either the parties (or their authorised representatives).
- Personal Agreement
The Agreement is personal to the Client and the Client shall not assign the benefit of or any interest in or subcontract any obligation under the Agreement.
- Entire Agreement
- This agreement 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 this agreement 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 this agreement.
- Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this agreement.
- Nothing in this clause shall limit or exclude any liability for fraud.
- Law and Jurisdiction
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
- Complaints and Disputes
- The Company will always aim to deliver excellence however there may be times when the Client is not happy with the service provided by the Company. The Company has a complaints procedure. A copy will be issued upon request. This procedure sets out the process for making a complaint and the amount of time you should expect to wait for a full response and investigation.
- If there is a dispute about the interpretation or operation of these terms and conditions then the Company will make every effort to resolve the dispute when and where it arises, negotiating on the basis of good faith
- Engagement & Services
Engagement and initial discussion will normally be conducted in good faith in order to establish the Clients’ requirements and;
- For consultancy services; the Company will identify and agree with the Client details of the work to be carried out, the location(s) where the services are to be performed, any reporting procedures or milestones for completion and who the service will need to be provided or delivered too. A General Service Agreement or other such Agreement will be provided by the Company detailing the nature, timeframes and or the fees for the service.
- For fully or part funded support; the Company will discuss and complete enrolment forms with the Client and upon agreement for support by the Client, the Client agrees to complete a diagnostic where applicable, and all activity, outcome and evidence related forms dated and signed upon completion of activity as per the particular project and its requirements and conditions.
- For using, hiring or leasing of facilities or equipment; The Client will complete a Hire Agreement, License to Occupy or Lease or other document stating the details, the use, the fee or rate, confirming a condition report and maintaining and reinstating the facility or equipment in the same condition and should be agreed by both parties at the time of handover. Any fault, repair or replacement required after use and at the time of handover will be recharged to the Client for any loss, repair or replacement within the facility or for equipment.