1 DEFINITIONS AND INTERPRETATION
1.1 In the Agreement, unless otherwise expressly stated:
“Agreement” means, in respect of each engagement, these Terms of Business, which may include additional third-party service terms that are relevant to and govern the provision of a specific 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 Metatech Group in the pursuance of its obligations under the Agreement and which are not expressly included within the Fee. Costs shall be paid for in full by Client;
“Client Premises” means the premises, described within the client quote upon which the Client has requested that The Metatech Group 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 Project as set out in the client quote or otherwise agreed in writing between the parties;
“Delivery Date” means the date for delivery of the Deliverables to Client as agreed in writing between the parties;
“Client Quote” means the client quote from The MetaTech Group to Client under which The Metatech Group is engaged by Client to provide the Services and/or Deliverables;
“Event” means the event described in the client quote.
“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, or any other materials (including any pre-existing internet connection that the Services rely upon) that may reasonably be required by The Metatech Group in order to provide the Services and/or the Deliverables;
“Materials” means any materials and/or information provided by Client to The Metatech Group (as set out in the client quote or otherwise provided by Client to The Metatech Group from time to time) for use in connection with the provision of the Services and/or Deliverables;
“Services” means the services set out within these terms and within the Appendix to the client quote, or as otherwise agreed in writing between the parties;
“Term” means, subject always to clause 12.10, the period from acceptance of Services or Deliverables, until five (5) Business Days after the Project; and
“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
By signing and accepting the client quote (or otherwise accepting the provision of any Services or Deliverables), Client appoints The Metatech Group to provide these Services and Deliverables, as may be described within the client quote and the terms of the Agreement.
Subject always to Clause 4.2, Client hereby appoints The Metatech Group to provide the Services for the Term and to engage subcontractors and to enter into such arrangements as The Metatech Group deems appropriate (on behalf of the Client) in the pursuance of The Metatech Group’s obligations under this Agreement to facilitate the provision of the Services, on the terms of this Agreement, and The Metatech Group hereby accepts the appointment on those terms.
4 SERVICES AND DELIVERABLES
4.1 Subject always to clauses 4.2, 7.1, 8.1 and 12.1 The Metatech Group shall use reasonable endeavours to provide the Services and to deliver the Deliverables in all material respects in accordance with the client quote or as otherwise agreed in writing between the parties from time to time (time shall not be of the essence in this regard).
4.2 In respect of the Noba brand services, the Client now acknowledges and agrees that it is entirely responsible for the Project and that The Metatech Group is in no way involved in the production or staging of the Event, and that The Metatech Group 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.
5 CLIENT OBLIGATIONS
5.1 Client will ensure that The Metatech Group are provided in advance of the Project with: (i) such information as is reasonably requested by The Metatech Group 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 Metatech Group’s employees or sub-contractors; (iii) a sheltered location on the Client Premises, that is strong enough to support the provision of electronic equipment of a size and weight no less than the Deliverables described within the Services; and
(iv) all such Infrastructure as may reasonably be required in order that The Metatech Group are able to properly provide the Services to the Client. Client acknowledges that The Metatech Group 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, and Client agrees to fully indemnify The Metatech Group, on a continuing basis, for the costs of any and all damage to equipment caused by Client’s failure to comply with this clause.
5.2 Client acknowledges that to the extent that The Metatech Group is required (or considers in its sole discretion that 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 now expressly provides The Metatech Group with permission to do so and, to the extent that such users’ permission must be sought, will assist The Metatech Group in that regard. 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 do the same.
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 Metatech Group or its subcontractors’ network or the networks of other persons. For example, the Customer 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.
5.5 Any amendments or modifications to the Services, the Deliverables or to what constitutes the Event, must be agreed in writing between the parties. To the extent that any additional services or deliverables are provided that are not either described within the within the client quote, or expressly agreed in writing between the Parties then the Fee shall be adjusted to take account of that additional work. Unless otherwise agreed between the parties, the Costs for any additional services shall be calculated as set out in the Appendix (Rate Card) to these Terms of Business.
5.6 Client accepts that The Metatech Group is neither an ISP nor an owner of satellites and that many of the services that The Metatech Group provides are provided by means of third-parties. To the extent that The Metatech Group provides Services by means of a third party, the Client accepts that those Services can only be supplied by The Metatech Group to the extent that the subcontractor provides them to The Metatech Group, 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 subcontractor that The Metatech Group may require, which terms may vary depending upon the services provided. The Metatech Group may provide such terms to the Client, and to the extent that Client refuses to agree to such terms Client accepts that The Metatech Group will not be able to provide the Services and/or Deliverables.
6 ACCEPTANCE OF DELIVERABLES
6.1 Client shall promptly review the Deliverables on receipt and shall notify The Metatech Group in writing if the Deliverables are not approved, together with the reasons for the same, no later than the end of the Event OR five (5) Business Days after delivery, whichever is the sooner. The Deliverables shall be deemed accepted in the absence of any such notification.
6.2 Risk in the Deliverables shall pass to Client on delivery and legal title shall pass on full payment (should payment not be made in full or in part, The Metatech Group retain the right to remove any such Deliverables, in whole or any relevant part, forthwith).
7.1 Client shall provide the Materials to The Metatech Group as soon as reasonably practicable after the date of the client quote or otherwise on demand from The Metatech Group. If The Metatech Group’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, The Metatech Group shall not be liable in any way to Client.
7.2 Client now grants to The Metatech Group a royalty-free, non-exclusive, sub-licensable and worldwide licence during the Term to use the Materials for or in connection with the provision of the Services and/or Deliverables.
7.3 Client now grants to The Metatech Group a royalty-free, non-exclusive, sub-licensable, worldwide and irrevocable licence to use Clients name on its website for self-promotional purposes.
8.1 Client shall pay the Fees to The Metatech Group in accordance with the payment schedule set out in the client quotation. The Metatech Group shall invoice the client for charges when they are payable, 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 quotation the following shall apply: (i) fifty per cent (50%) of the Fees shall become due on acceptance of the client quotation 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 Project and payable by the date of the Project and the remaining twenty per cent (20%) of the fees together with any additional costs that may have been incurred shall become due the day after the Project finished 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 RESERVATION OF TITLE TO GOODS
9.1 Unless otherwise agreed in writing, risk in the Goods passes to the Buyer when these Goods are despatched from The Metatech Group. The Goods shall remain the property of The Metatech Group and title to the Goods shall remain with The Metatech Group until payment in full has been received. Until title to the Goods passes to the Buyer, the Buyer shall maintain the Goods in satisfactory condition insured on The Metatech Group’s behalf for their full price against all risks to the reasonable satisfaction of The Metatech Group. In the event that goods are resold by the Buyer before payment is made in full, the Company shall be entitled to the full value of the Goods shown on the original invoice.
10 WARRANTIES, INDEMNITY AND LIMITATION OF LIABILITY
10.1 Client warrants that: (i) it has provided The Metatech Group with all necessary information concerning the Project (including notice of any Applicable Laws) to enable The Metatech Group to correctly determine the scope of the Services, 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 Metatech Group’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 Metatech Group of the Services and Deliverables are necessarily dependent upon the provision of third-party 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 Metatech Group 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 in accordance with all Applicable Laws.
10.2 Client shall indemnify, and continue to keep indemnified, Noba (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 Metatech Group advises the Client, whether orally or in writing, that the Services 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 Metatech Group 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 system recommended by The Metatech Group.
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 Metatech Group for fraud or for death or personal injury resulting from its negligence.
10.6 Subject to clause 9.4 and 9.5 above, The Metatech Group shall not be liable to Client for loss of profits, loss of business, depletion of goodwill, loss of anticipated savings or any special, indirect or consequential loss.
10.7 The Metatech Group’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% the amount actually paid by Client to The Metatech Group under the Agreement.
10.8 This clause 9 shall survive termination or expiry of the Agreement, however arising.
11.1 Client may terminate the Agreement without cause at any time before the start of the Project. In the event that the Agreement is terminated less than eight weeks before the start of the Project, the Client shall remain liable for 50% of the Fee. Where termination occurs less than four weeks before the start of the Project, the Client shall remain liable for the entire Fee. To the extent that the Project is terminated more than eight weeks before the Project, the Client shall pay for such of The Metatech Group’s Services as have already been provided or incurred on the basis of The Metatech Group’s then-current rate card. The Client shall always be liable to pay for any Costs that have already been incurred (or contractually committed to) by The Metatevch Group, regardless of when termination occurs.
11.2 Client’s liability for the amounts referred to in the above clause 10.1 shall apply only to the extent that The Metatech Group have been unable to engage in similar alternative engagement despite reasonable efforts to mitigate The Metatech Group’s losses.
11.3 Without prejudice to their other rights and remedies, both parties shall have the right at any time during the Term to terminate the Agreement immediately by written notice to the other (the “Defaulting Party”) if:
11.3.1. the Defaulting Party fails to perform any of its material 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 Metatech Group such Materials and/or Deliverables as are either owned by Client or which have been fully paid for by Client and The Metatech Group shall be entitled to charge for storage of any items which remain uncollected for more than three (3) Business Days after termination or expiry.
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 (“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 Metatech Group 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 addresses provided by the client, (or such other addresses as being notified by either party from time to time).
13.4 Subject to clause 9.3, 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 (other than for breach of contract) 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 the authority or power to bind the other or to contract in the name of or create a 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, 7.3, 8.4, 9.8, 11 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
14.1 Where clients have purchased a support contract The Metatech Group will answer all support calls within a 2hr timeframe. Upon receiving a support call The Metatech Group will look to resolve the fault remotely. Where faults cannot be resolved remotely The Metatech Group will attend the client site within a 24hr period. If the fault is not related to The Mketatech Group’s products or services, an emergency callout charge of £495 + VAT will apply