Terms of Business

1. DEFINITIONS AND INTERPRETATION

 

1.1 In the Agreement, unless otherwise expressly stated:

“Agreement” means, in respect of each engagement, these Terms of Business, each accepted Client Quote, and may also include additional Third Party Provider service terms that are relevant to and govern the provision of a specific element of a Service;

“Applicable Law” means in relation to any undertaking and any circumstance, all laws, regulations (including without limitation any UK export laws and regulations), standards determined by any governmental, regulatory or local authority and generally applicable industry or self-regulatory standards, codes of practice and guidelines or other applicable matters of a similar nature in force from time to time in the location at which the Services will be provided, whether the same are regional, national or international, which apply to such undertaking or to such circumstance;

 

“Business Day” means a day other than Saturday or Sunday on which banks are open for business in England;

 

“Costs” means any amounts that are incurred by the Supplier in the pursuance of its obligations under the Agreement and which are expressly stated in the Client Quote as being additional to the Fee. Costs shall be paid for in full by Client;

 

“Client Premises” means the premises, described within Client Quote, in relation to which the Client has requested that the Supplier provides the Services;

 

“Defaulting Party” shall have the meaning given to it in clause 10.3;

 

“Deliverables” means the deliverables for or in respect of the Client Premises and, if applicable, the Event(s), as set out in the Client Quote or otherwise agreed in writing between the parties which are required in connection with the provision of the Services. Deliverables may be either the subject of a sale (where ownership of the item transfers to the Client upon payment in full) or rental (where ownership of the item remains with the Supplier at all times and possession can be recovered by the Supplier at the end of the Event or the term of the Services);

 

“Delivery Date” means the date for delivery of the Deliverables to Client as agreed in writing between the parties in the Client Quote;

 

“Client Quote” means the quotation issued by the Supplier to Client under which the Supplier is engaged by Client to provide the Services and/or Deliverables;

 

“Event” means the event described in the Client Quote, if applicable.

 

“Fees” means the sum (exclusive of VAT) set out in the Client Quote that is payable for the provision of the Services and Deliverables;

 

“Infrastructure” means any and all equipment, buildings (temporary or otherwise), sufficient power, fencing, staging and or any other materials (including any pre-existing internet connection that the Services rely upon) that may reasonably be required by the Supplier in order to provide the Services and/or the Deliverables including those identified in the Client Quote;

 

“Materials” means any materials and/or information provided by Client to the Supplier (as set out in the Client Quote or otherwise provided by Client to the Supplier from time to time) for use in connection with the provision of the Services and/or Deliverables;

 

“Services” means the services set out within the Client Quote, or as otherwise agreed in writing between the parties;

 

“Supplier” means The Metatech Group Limited.

“Support Services” means services to be provided by the Supplier to identify the cause of and correct where possible any failure of the Services and related Deliverables to perform as reasonably anticipated. Support Services are only provided if expressly contracted as part of the Client Quote.

“Term” means, subject always to clause 11, the period referred to in the Client Quote during which the Supplier is contracted to provide the Services and/ or rental Deliverables; and

“Third Party Provider” means a supplier of telecommunications or other services or equipment that the Supplier agrees to commission in connection with the Services but who  is not to be regarded as a sub-contractor of the Supplier.

“VAT” means Value Added Tax.

 

1.2 In the Agreement: use of the singular includes the plural and vice versa; and clause and schedule headings shall not affect the interpretation of the Agreement.

 

1.3 In the event of any inconsistency between these Terms of Business and the Client Quote, the terms of the Client Quote shall prevail.

 

2. THE AGREEMENT

2.1 By signing and accepting the Client Quote (or otherwise accepting the provision of any Services or Deliverables), Client appoints the Supplier to provide the Services and Deliverables, as  described within the Client Quote upon the terms of the Agreement.

2.2 By permitting the provision of Services and / or Deliverables to proceed, the Client acknowledges that these Terms of Business will exclusively apply to govern the provision of Services and Deliverables by the Supplier to the exclusion of any purchase or other terms put forward by or on behalf of the Client. These Terms of Business will also apply to all Services and / or Deliverables provided by the Supplier even in the absence of a Client Quote.

 

3. APPOINTMENT

Subject always to Clause 4.2, Client hereby appoints the Supplier to provide the Services for the Term and to engage subcontractors and to enter into such arrangements with Third Party Providers as the Supplier deems appropriate (on behalf of the Client) in pursuance of the Supplier’s obligations under this Agreement to facilitate the provision of the Services, on the terms of this Agreement, and the Supplier hereby accepts the appointment on those terms.

 

4. SERVICES AND DELIVERABLES

4.1 Subject always to clauses 4.2, 5, 7.1 and 13.2, the Supplier shall use reasonable endeavours to provide the Services and to deliver the Deliverables in all material respects in accordance with the Client Quote (time shall not be of the essence in this regard). Services and Deliverables are not guaranteed to work error free. To the extent that the Supplier has been involved in the scoping of the Services and the Deliverables, the Client acknowledges that this will have been based on information provided by the Client. the Supplier’s responsibility is to exercise reasonable skill and care in the scoping of the Services and the Deliverables taking into account the Client’s budget and the degree of resilience desired. The Supplier does not guarantee that the Services and the Deliverables will always be able to cope with peak levels of demand. Performance as experienced may sometimes be affected by third party usage of shared elements of infrastructure. Deliverables that are the subject of a sale shall be sold subject to whatever warranties and remedies are provided by and obtained from the Supplier’s Third Party Provider. Deliveries that are subject to rental will either be repaired or replaced promptly at the discretion of the Supplier to ensure they function as reasonably expected for the relevant Term.

 

4.2 Client acknowledges and agrees that it is entirely responsible for the Event and the Client Premises, and that the Supplier is in no way involved in the production or staging of the Event. The Supplier shall on no account be deemed to be in “control” of the Client Premises, or any part of them, whether under any Applicable Law or otherwise. The Client shall be responsible for the safe operation of the Client Premises.

 

5. CLIENT OBLIGATIONS

5.1 Client warrants that it is duly authorised to commission the Services / Deliverables in respect of the Client Premises and has the necessary consent of the owner of the Client Premises. Client will ensure that the Supplier is provided in good time in advance of the Event or the date scheduled for the go-live of the Services with: (i) such information as is reasonably requested by the Supplier in relation to the provision of the Services and the Deliverables under the Agreement, including for example but without limitation, such information as may be required in order to accurately pre-estimate bandwidth requirements; (ii) access at all times to the Client Premises for any of the Supplier’s employees, sub-contractors and Third Party Providers; (iii)  reasonably suitable, weather proof and secure location(s) at the Client Premises, that is strong enough to support the location and installation of  the Deliverables described within the Client Quote; and (iv) all such Infrastructure as may reasonably be required in order that the Supplier is able to properly provide the Services to the Client. Client acknowledges that the Supplier will not be liable for any failure to implement or provide a Deliverable and/or Service to the extent that any of the above are not fully provided in good time, and Client agrees to fully indemnify the Supplier, on a continuing basis, for the costs of any and all damage to equipment caused by Client’s failure to comply with this clause. Client will also remain responsible for the Fees and Costs as per the Client Quote in full notwithstanding that the Supplier may not have been able to provide the Services / Deliverables due to the Client’s default.

 

5.2 Client acknowledges that to the extent that the Supplier is required (or considers in its sole discretion that it ought) to do anything by any Applicable Law, including but not limited to the storage and retention of user ID’s, IP addresses, and other communications data, Client expressly provides the Supplier with permission to do so and, to the extent that such users’ permission must be sought, Client must procure the same. Furthermore, Client will not itself use the Services or Deliverables in a manner that is indecent or in violation of any Applicable Laws and will procure that Event attendees and/ or users of the Client Premises do the same.

 

5.3 Client shall not use or knowingly permit the Services or the Deliverables, or data relating thereto, to be used in violation of the then current version of the Supplier’s Acceptable Use Policy and Privacy Policy which is published on the Supplier’s web site or such other address as notified from time-to-time. Client will take reasonable steps to ensure that Event attendees and / or users of the Client Premises are aware of and subject to an equivalent Acceptable Use Policy.

 

5.4 Client shall not use or knowingly permit the Services or the Deliverables to be used in ways that infringe the rights of other persons, or in ways that interfere with other users of either the Supplier or its subcontractors’/ Third Party Provider’s network or the networks of other persons. For example, the Client shall not and shall procure that its customers shall not distribute chains or unsolicited bulk electronic mail (“spamming”); propagate computer worms or viruses; use a false identity; attempt to gain unauthorised entry to any site or network; distribute child pornography, obscene or defamatory material; or infringe copyrights, trademarks or other intellectual property rights. The Client acknowledges the rights of the Supplier and Third Party Providers to restrict or suspend access to the Services or Deliverables if the Client or Event attendees and / or users of the Client Premises are in breach of clauses 5.3 and 5.4.

 

5.5 Any amendments or modifications to the Services, the Deliverables, the Client Premises or to what constitutes the Event, must be agreed in advance and in writing between the parties. To the extent that any additional services or deliverables are provided that are not either described within the Client Quote, or expressly agreed in writing between the Parties then the Fees shall be reasonably adjusted to take account of that additional work. Unless otherwise agreed between the parties, the Fees for any additional services shall be calculated as set out in the proposal.

 

5.6 Client accepts that the Supplier is neither an ISP nor an owner of satellites, and that certain aspects of the Services that the Supplier provides are provided by means of Third Party Providers. To the extent that the Supplier provides Services by means of Third Party Providers, the Client accepts that those Services can only be supplied by the Supplier to the extent that the Third Party Provider provides them to the Supplier, as such, for example, internet services, 3G coverage and satellite connectivity cannot be guaranteed.

 

5.7 Client must also agree to any and all terms and conditions that any Third Party Provider imposes. The Supplier will provide such terms to the Client upon request, and to the extent that Client refuses to agree to such terms Client accepts that the Supplier will not be able to provide the Services and/or Deliverables. The Supplier’s obligations in respect of any failure by a Third Party Provider shall be limited to passing to the Client the benefit of any remedy received from the Third Party Provider to the extent that they relate to loss or damage suffered by the Client.

 

6. DELIVERABLES

6.1 Client shall promptly review the Deliverables on receipt and shall as soon as possible notify the Supplier in writing if the Deliverables are not  consistent with the Client Quote, together with the reasons for the same, no later than five (5) Business Days after delivery

 

6.2 Risk in the Deliverables shall pass to Client on delivery to the Client Premises and legal title in any Deliverables that are the subject of a sale shall pass on full payment being received by the Supplier. Should payment not be made in full or in part in respect of any Deliverable (whether sale or rental), the Supplier retains the right to remove any such Deliverables, in whole or any relevant part, forthwith).

 

7. MATERIALS

7.1 Client shall provide the Materials to the Supplier as soon as reasonably required . If the Supplier’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of Client, including but not limited to failure to provide the Materials on time, the Supplier shall not be liable in any way to Client. The Client shall nevertheless remain liable for the Fees and to compensate the Supplier for any wasted time or additional work that is required as a result of the Client’s failure.

 

7.2 Client grants to the Supplier a royalty-free,  licence during the Term to use the Materials only for or in connection with the provision of the Services and/or Deliverables.

 

7.3 Client grants to the Supplier a royalty-free,  licence to use Client’s name and logo on its website for promotional purposes.

 

8. FEES

8.1 Client shall pay the Fees to the Supplier in accordance with the payment schedule set out in the Client Quote. The Supplier shall invoice Client for Fees when they are due, together with any expenses and other Costs which may be due, together with VAT as applicable.

 

8.2 Should payment terms not be defined in the Client Quote the following shall apply: For Clients the subject of their first Client Quote, 100% of the Fees and Costs are payable in advance. Otherwise, for second and subsequent Client Quotes, (i) fifty per cent (50%) of the Fees shall become due on acceptance of the Client Quote which shall be payable within five (5) UK Business Days; (ii) thirty per cent (30%) of the Fees shall become due five (5) UK Business Days before the date of the Event or the date scheduled for the Services to go-live and payable by the date of the Event or the date of go-live, and the remaining twenty per cent (20%) of the Fees together with any additional Costs that are reimbursable shall become due the day after the Event finished or the Services went live (as applicable) and shall be payable within thirty (30) days.

 

8.3 If any amount required to be paid under the Agreement is not paid when it is due, such amount shall bear interest at the rate of 4% per annum above the base lending rate of the Bank of England from time to time calculated on a daily basis for the period from the due date to the date of actual payment.

 

8.4 This clause 8 shall survive termination or expiry of the Agreement, however arising.

 

9. NOT USED

 

10. WARRANTIES, INDEMNITY AND LIMITATION OF LIABILITY

10.1 Client warrants that: (i) it has provided the Supplier with all necessary information concerning the Event and the Client Premises (including notice of any Applicable Laws) to enable the Supplier to correctly determine the scope of the Services and advise on the required Deliverables, and that all such information is complete and accurate; (ii) it has full power and authority to enter into the Agreement and to grant the licence set out in clause 7.2; (iii) that the Supplier’s use of the Materials in accordance with the licence set out in clause 7.2 will not infringe the intellectual property rights or other rights of any third party; (iv) it understands that the provision by the Supplier of the Services and Deliverables are necessarily dependent upon the provision of Third Party Provider services and devices, including but not limited to satellites and other communications equipment, that may not always be fully operational or connected, and will not make any complaint or claim against the Supplier for a breach of its obligations under the Agreement to the extent that the breach is directly or indirectly a result of any failure by that third-party service or device; and (v) it shall at all times operate the Event and the Client Premises in accordance with all Applicable Laws.

 

10.2 Client shall indemnify, and continue to keep indemnified, the Supplier (together with its officers, directors, shareholders and employees) (each an “Indemnified Party”) on demand from and against any and all losses, costs, actions, liabilities, demands, claims, damages, expenses (including legal costs) suffered or incurred, directly or indirectly, by any Indemnified Party as a result of any breach, non-performance or non-observance by Client of the Agreement.

 

10.3 To the extent that the Supplier advises the Client, whether orally or in writing, that the Services / Deliverables should include a secondary support, or “back-up” system, and the Client does not elect to include such a system within the Services, then the Supplier shall not be held liable for any breach of the Agreement or interruption to the Service that would have been prevented had the Client elected to include within the Services / the Deliverables the secondary system recommended by the Supplier.

 

10.4 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.

 

10.5 Nothing in the Agreement limits or excludes the liability of the Supplier for fraud or for death or personal injury resulting from its negligence.

 

10.6 Subject to clause 10.5 above, the Supplier shall not be liable to Client for loss of profits, loss of business, depletion of goodwill,  or any special, indirect or consequential loss.

 

10.7 The Supplier’s total liability in contract, tort (including negligence or breach of statutory duty) or otherwise arising in connection with the performance or contemplated performance of the Agreement shall be limited to 100% of the amount payable by the Client to the Supplier under the  relevant Client Quote in the 12 month period giving rise to the claim.

 

10.8 This clause 10 shall survive termination or expiry of the Agreement, however arising.

 

11. TERMINATION

11.1 Client may terminate the Agreement without cause at any time before the scheduled start of the Event or the scheduled date for go-live of the Services (as applicable). In the event that the Agreement is terminated less than eight weeks before the scheduled start of the Event or the scheduled date for go-live of the Services (as applicable), Client shall remain liable for 50% of the Fees. Where termination occurs less than four weeks before the scheduled start of the Event or the scheduled date for go-live of the Services (as applicable), Client shall remain liable for the entire Fees. To the extent that the Event is terminated more than eight weeks before the Event, Client shall pay for such of the Supplier’s Services as have already been provided or incurred on the basis of the Supplier’s then current rate card. Client shall always be liable to pay for any Costs / Fees that have already been incurred (or contractually committed to) by the Supplier, regardless of when termination occurs or any liabilities to Third Party Providers that cannot be avoided by the Supplier.

 

11.2 Client’s liability for the amounts referred to in the above clause 11.1 shall apply only to the extent that the Supplier has been unable to engage in alternative engagement(s) and thereby to avoid losses despite reasonable efforts to do so.

 

11.3 Without prejudice to their other rights and remedies, both parties shall have the right to terminate the Agreement immediately by written notice to the other (the “Defaulting Party”) if:

 

11.3.1. the Defaulting Party materially fails to perform any of its obligations under the Agreement and fails to remedy the same within ten (10) Business Days after receiving notice to do so from the other party; or

 

11.3.2. the Defaulting Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, is insolvent, ceases or threatens to cease carrying on business or is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or any step is taken for the appointment of an administrator or receiver or any analogous event occurs in any jurisdiction.

 

12. EFFECTS OF TERMINATION

12.1 The expiry or termination of the Agreement shall not affect any rights or obligations which have accrued to either party prior to such expiry or termination or any clauses which expressly or by implication survive such expiry or termination.

 

12.2 Upon expiry or termination of the Agreement for any reason, Client shall become responsible for and shall collect from the Supplier such Materials and/or Deliverables as are either owned by Client or which have been fully paid for by Client and the Supplier shall be entitled to charge for storage of any items which remain uncollected for more than three (3) Business Days after termination or expiry.

12.3 Upon expiry or termination of the Agreement for any reason, the Supplier shall be entitled to access the Client Premises to remove and collect any Materials and/or Deliverables that are not owned by the Client or which have not been fully paid for by the Client.

 

13. GENERAL

13.1 Both parties undertake to keep confidential and not to disclose to any third party, or to use for any purpose other than as set out in the Agreement, without the other party’s prior written consent, any trade or business secrets or other confidential information of the other party which it may be given or otherwise obtain as a result of or relating to the Agreement or which it may otherwise learn during the course of its performance of its obligations under the Agreement.

 

13.2 In the event that either party is unable for any reason to perform its respective obligations (excluding making any due payment) under the Agreement by reason of circumstances beyond its reasonable control or beyond the reasonable control of its sub-contractors or Third Party Providers (“force majeure event”), including, without limitation, acts of war or other action of military forces, satellite link failure, lack of 3G coverage, computer viruses, terrorism, riot, civil commotion, sabotage, vandalism, accident, fire, flood, acts of God, abnormally inclement weather, winds above force 9 on the Beaufort scale, strike, lock-out or other industrial disputes or legislative or administrative interference, then such party shall not be in breach of the Agreement to the extent caused by, and for the duration of, such force majeure event. Notwithstanding the foregoing, if such force majeure event prevents the Supplier from being able to perform its obligations for a period in excess of four (4) weeks then either party shall have the right to terminate the Agreement by written notice to the other, subject always to the provisions of clause 10.1.

 

13.3 Any notice given under the terms of the Agreement shall be given in writing to the address provided on the Client Quote, (or such other addresses as be notified by either party from time to time for that purpose).

 

13.4 The Agreement contains the entire agreement and understanding of the parties and supersedes all prior agreements, understandings or arrangements (both oral and written) relating to the subject matter of the Agreement.

 

13.5 Each party acknowledges that in entering into the Agreement it has not relied on and shall have no right or remedy  in respect of any statement, representation, assurance or warranty made or given, or purportedly made or given, by or on behalf of the other party (whether made negligently or innocently) other than as expressly set out in this Agreement.

 

13.6 The Agreement may only be modified, or any rights under it waived, by a written document signed by both parties.

 

13.7 Any waiver of a breach of any of the terms of the Agreement or of any default under this Agreement will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Agreement.

 

13.8 If any provision of the Agreement is held to be unenforceable in whole or in part then the Agreement will continue to be valid as to its other provisions and the remainder of the affected provision will be unaffected.

 

13.9 Nothing in the Agreement constitutes a partnership or joint venture between the parties for any purpose whatsoever and neither has authority or power to bind the other or to contract in the name of or create liability against the other in any way or for any purpose save as expressly authorised in writing by the other from time to time.

 

13.10 Clauses 1.1, , 8.4, 10.8, and 12, shall survive the termination of this Agreement.

 

13.11 The Agreement is not intended by the parties to give rise to any right which is enforceable by any third party by virtue of the Contracts (Rights of Third Parties) Act 1999.

 

13.12 This Agreement and any dispute or claim or non- contractual obligations arising out of or in connection with them or their subject matter shall be governed by and construed in accordance with the law of England and Wales.

 

13.13 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter.

 

14. SUPPORT

14.1 Where Client has purchased Support Services, the Supplier will, unless an alternative service level has been expressly agreed in writing in the Client Quote, answer all support calls within a 2hr timeframe. Upon receiving a support call the Supplier will look to resolve the fault remotely. Where faults cannot be resolved remotely the Supplier will attend the Client Premises within a 24hr period. If the fault is a non the Supplier fault, an emergency callout charge as quoted in the Supplier’s standard rate card from time to time will apply.