THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 7 (DATA PROTECTION AND DATA PROCESSING) AND CLAUSE 8 (LIMITATION OF LIABILITY).
THE FOLLOWING DEFINITIONS AND RULES OF INTERPRETATION APPLY IN THESE CONDITIONS.
Monthly Subscription Fee: the monthly fee for the selected Services, as defined in the Customer’s purchase order form.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5 (Charges and payment).
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.
Contract: the contract between INSURGE LTD and the Customer for the supply of Services in accordance with these Conditions.
Contractual Term: a period of calendar months from the Commencement Date and every subsequent months until the Contract is terminated in accordance with clause 9.
Customer: the person or firm who purchases Services from INSURGE LTD.
Customer Default: has the meaning set out in clause 4.2.
Deliverables: the deliverables set out in the Order produced by INSURGE LTD for the Customer.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer’s order for Services as set out in the Customer’s purchase order form.
Services: the services, including the Deliverables, supplied by INSURGE LTD to the Customer as set out in the Specification.
Specification: the description or specification of the Services provided in writing by INSURGE LTD to the Customer.
1. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory 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 faxes and emails.
2. Basis of contract
1. The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2. The Order shall only be deemed to be accepted when INSURGE LTD issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
3. Any samples, drawings, descriptive matter or advertising issued by INSURGE LTD, and any descriptions or illustrations contained in the INSURGE LTD’s brochures or website, 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. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
5. These Conditions incorporate the LinkedIn’s User Agreement. If there is an inconsistency between any of the provisions of these Conditions and the provisions of the LinkedIn’s User Agreement, the provisions of these Conditions shall prevail.
3. Supply of Services
1. INSURGE LTD shall supply the Services to the Customer in accordance with the Specification in all material respects.
2. INSURGE LTD shall use all reasonable endeavours to meet any performance targets specified in application form and the Customer’s purchase order form, but any such targets shall be estimates only and time shall not be of the essence for performance of the Services.
3. INSURGE LTD reserves the right to amend the specification 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 INSURGE LTD shall notify the Customer in any such event.
4. INSURGE LTD warrants to the Customer that the Services will be provided using reasonable care and skill.
4. Customer’s obligations
1. The Customer shall:
1. ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
2. co-operate with INSURGE LTD in all matters relating to the Services;
3. provide INSURGE LTD with such information and materials as INSURGE LTD may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects and at all times;
4. 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;
5. comply with any additional obligations as set out in the Specification; and
2. If INSURGE LTD’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
1. without limiting or affecting any other right or remedy available to it, INSURGE LTD shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays INSURGE LTD’s performance of any of its obligations;
2. INSURGE LTD shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from INSURGE LTD’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
3. the Customer shall reimburse INSURGE LTD on written demand for any costs or losses sustained or incurred by INSURGE LTD arising directly or indirectly from the Customer Default.
5. Charges and payment
1. The Annual Subscription Fee for the Services shall be payable by direct debit in advance by monthly instalments until the Contract is terminated by either party in accordance with clause 9.
2. INSURGE LTD reserves the right to increase the Annual Subscription Fee on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be the latest available figure for the percentage increase in the Retail Prices Index.
3. 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. Intellectual Property Rights
1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by INSURGE LTD, its subcontractors or agents.
2. The Customer grants INSURGE LTD a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to INSURGE LTD for the term of the Contract for the purpose of providing the Services to the Customer.
7. Data Protection And Data Processing
2. INSURGE LTD will be the controller of your personal data provided to, or collected by or for, or processed in connection with our Services.
4. By submitting feedback in relation to our Services to INSURGE LTD, you authorise us to use and share such feedback, should we wish to do so, for any purpose without compensation to you.
5. You agree to only provide content or information that does not violate the legislation nor anyone’s rights (including intellectual property rights). You also agree that your profile information will be truthful and accurate.
8. Limitation Of Liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
1. Nothing in the Contract shall limit or exclude INSURGE LTD’s liability for:
1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
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) or any other liability which cannot be limited or excluded by applicable law.
2. Subject to clause 8.1, INSURGE LTD shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
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 damage to goodwill;
7. any loss arising out of the Customer’s failure to comply with its obligations under these Conditions; and
8. any indirect or consequential loss.
3. Subject to clause 8.1, INSURGE LTD’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the last Annual Subscription Fee paid by the Customer .
4. The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
5. This clause 8 shall survive termination of the Contract.
1a. Without affecting any other right or remedy available to it, the Customer may terminate the Contract by either activating the 3 month break clause from 30 days after the commencement date by giving INSURGE LTD written notice via email to email@example.com. Termination notice cannot be given in the first 30 days.
1b. If the customer has passed their 3 month break clause, notice to terminate at the end of their 12 month agreement must be given within month 9 of the Contract via email to firstname.lastname@example.org, otherwise the Contract will then be renewed for a further 12 months.
2. Subject to clause 9.1, either party may terminate the Contract at the expiry of the Contractual Term by giving the other party one months’ prior written notice.
3. Without affecting any other right or remedy available to it, INSURGE LTD may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
4. Without affecting any other right or remedy available to it, INSURGE LTD may suspend the supply of Services under the Contract or any other contract between the Customer and INSURGE LTD if the Customer fails to pay any amount due under the Contract on the due date for payment.
10. Consequences of termination
1. On termination of the Contract pursuant to clause 9, the Customer shall cancel its direct debit mandate.
2. On termination of the Contract pursuant to clause 9.2, the Customer shall make all the payments due to INSURGE LTD in relation to the monthly Subscription Fee for the Contractual Term.
3. 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.
4. 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.
1. Force majeure. INSURGE LTD shall not 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. INSURGE LTD 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 Customer shall not assign, transfer, mortgage, charge, subcontract, 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 INSURGE LTD.
1. 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 clause 11.3(b) below.
2. Each party may disclose the other party’s confidential information:
1. to its employees, officers, representatives, 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, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.3; 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 breach 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 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.
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 the address specified in email@example.com
2. Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; 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 at the time recorded by the delivery service; or, if sent by fax or email, at 9.00 am next Business Day after transmission.
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. 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.
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 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.