TERMS & CONDITIONS OF BUSINESS
The terms and conditions will form the contract for the provision of the services by Hugo Technology. They shall not be varied without the express permission in writing of Hugo Technology.
DEFINITIONS AND INTERPRETATION
1.1 In this Contract:
- "Contract" means these terms and conditions and any schedule to them;
- "Intellectual Property Rights" or " IPR" shall mean intellectual property rights whether vested or contingent and whether currently in existence or otherwise including (without limitation) patents, inventions, trademarks, service marks, logos, design rights, registered designs, copyright, database rights, domain names, trade or business names, moral rights, trade secrets, the right to sue for passing off and all similar rights whether registered or not (in any country) and all extensions revivals reversions and renewals of any of the above. The above shall include in relation to registrable rights any applications made in respect of such rights.
- "Insolvency Event" means the occurrence of any of the following events (or any event analogous to any of the following in a jurisdiction other than England and Wales) in relation to Hugo:
- passing a resolution for its winding up or a court of competent jurisdiction making an order for either party to be wound up or dissolved or either party being otherwise dissolved;
- the appointment of an administrator of or, the making of an administration order in relation to either party or the appointment of a receiver or administrative receiver of, or an encumbrancer taking possession of or selling, the whole or part of either parties' undertaking, assets, rights or revenue;
- entering into an arrangement, compromise or composition in satisfaction of its debts with its creditors or any class of them or takes steps to obtain a moratorium or makes an application to a court of competent jurisdiction for protection from its creditors;
- being unable to pay its debts or being deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
- entering into any arrangement, compromise or compromise or composition in satisfaction of its debts with its creditors;
- "Services" means any and all of the services to be provided by Hugo under this Contract including those set out in the quotation.
- "Termination Notice" means a notice to terminate this Contract or part of the Services either immediately or at a date specified in the notice;
- "Working Day" means any day other than a Saturday, Sunday or public holiday in England and Wales;
1.2 The headings of these clauses shall not affect the interpretation thereof.
1.3The masculine includes the feminine and vice versa.
1.4The singular includes the plural and vice versa.
1.5Reference to any enactment, order, regulation or other similar instrument, shall be construed as a reference to the enactment, order, regulation or instrument as amended by any subsequent enactment, order, regulation or instrument.
1.6If there is any inconsistency or conflict between what is set out in any of the conditions of this Contract and what is set out in any of the quotation the conditions shall prevail.
1.7This Contract constitutes the entire agreement between the parties relating to the subject matter of the Contract. The Contract supersedes any representations, documents, negotiations or understandings, whether oral or written, made, carried out or entered into before the date of this Contract, except that this clause shall not exclude liability in respect of any fraudulent misrepresentation.
SCOPE OF SERVICE
2.1 Hugo shall provide the Services described in the quotation from the Commencement Date indicated in the quotation.
2.2 Hugo shall perform its obligations under this Contract including those in relation to the Services in accordance with good industry practice.
2.3 All contracts are accepted on the assumption that the equipment is in good working order. If subsequently equipment is found to be defective all remedial work will be quoted for and completed before the said contract is activated.
2.4 If there is a service failure or if Hugo believes that there will be a service failure, Hugo shall notify the customer promptly of the service failure or likely service failure and shall take steps to remedy the failure within 7 working days.
2.5 Services will be provided for the period set out in the quotation. If no period is set then services may be terminated by either side by giving three months notice of termination.
PRICE AND PAYMENT
3.1 The price for the services shall be that identified in the quotation. This may be varied by Hugo from time to time but only once notice of 30 days has been given. Services will be invoiced on a monthly basis and payment shall be made within 7 days of the invoice date. All sums payable pursuant to this Contract are exclusive of Valued Added Tax ("VAT") which shall be paid at the prevailing rate providing it is properly detailed on an invoice in compliance with prevailing legislation.
LIMITATION ON LIABILITY AND INDEMNITIES
4.1 Neither party limits its liability for:
4.1.1 Death or personal injury caused by its negligence, or that of its employees, agents or subcontractors or
4.1.2 Fraud or fraudulent misrepresentation by it or its Employees; or
4.1.3 Breach of any obligation as to title implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982.
4.2 The total aggregate liability of the parties for all claims whether arising from tort, breach of contract or otherwise under or in connection with this Contract shall in no event exceed the total amount paid by the customer under this Contract during the 12 months preceding the event giving rise to liability.
4.3 Subject to clause 13.2, the parties shall not be liable for:
4.3.1 any loss of business, profits, revenue, anticipated savings, (even where the same arises directly from a breach of these Conditions)
4.3.2 indirect, punitive, incidental, special or consequential loss or damage, even if foreseeable by or in the contemplation of the Parties including without limitation to the cost of substituting; or
4.3.3 any loss of business opportunities or damage to goodwill (whether direct or indirect).
HEALTH AND SAFETY AT WORK
5.1 Hugo shall observe the provisions of the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999 and all other regulations, approved Codes of Practice and amendments thereto pertaining to the health and safety of employees and members of the public and shall ensure that its agents, employees and sub-contractors are competent to carry out their respective tasks with due regard to Hugo's obligations under these Acts and other instruments.
6.1 "Confidential information" shall mean all information disclosed by one party to the other, orally in writing or in electronic form relating to this Contract that is not in the public domain (except where disclosure is in the public domain due to a breach of this clause). It shall also include information, documents, drawings, reports or data Hugo may acquire or generate under or in connection with this Contract. The existence of this contract and the provision of services is not considered to be confidential.
6.2 Subject to requirement of the law neither party shall, without the prior written consent of the other, publish or disclose to any person, or permit any such disclosure by any of its employees or representatives, any Confidential Information received by it in relation to the Services or the party's business generally.
6.3 The obligations imposed by this Clause shall apply during the continuance of this Contract and for one year after its expiry or termination.
INTELLECTUAL PROPERTY RIGHTS
7.1 Neither party will acquire intellectual property rights of the other in the performance of this contract.
8.1 Both parties shall throughout the term of this Contract comply with the provisions of the Data Protection Act 1998 ('DPA 1998') or any subsequent amendment thereto and shall ensure that its agents and employees are trained in and comply with the data protection principles set out in the above Act in their performance of the Services.
9.1 If any provision or term of the Contract or any part of it shall become unenforceable for any reason whatsoever, including but without limitation by reason of the provisions of any legislation, Regulation, Order, Direction of the Secretary of State or other provision having the force of law or by reason of any decision of any Court of competent jurisdiction, the validity and enforceability of the remainder of this Contract shall not be affected thereby and shall remain in full force and effect. Where any such provision or decision substantially affects or alters the ability of either of the parties to comply fully with its contractual obligations the parties shall negotiate in good faith to amend and modify the provisions and terms of the Contract as may be necessary or desirable in the circumstances.
10.1 Neither party to this Contract shall be liable to the other nor held in breach of the Contract if either party is prevented, hindered or delayed in the performance of its obligations under the Contract by any act of God, war, riot, terrorism, civil commotion, explosion, fire, radiation, accident, government action, interruption in the supply of power, labour dispute other than a dispute concerning Hugo employees or the employees of its sub-contractors, epidemic or other circumstances beyond the control of the parties which prevents a party from, or hinders or delays a party in, performing its obligations under this Contract (and which the application of due diligence and foresight could not have prevented).
10.2 If due to any of the circumstances listed in clause 22.1 either party is prevented, hindered or delayed in the performance of their obligations in accordance with the Contract that party shall as soon as reasonably practicable notify the other in writing of such prevention, hindrance or delay and the reasons therefor whereupon the operation of the Contract shall be suspended. The customer shall not be liable to make payment to Hugo during such suspension.
10.3 The suspension of the operation of the Contract shall continue during the period (and only during the period) that such prevention, hindrance or delay due to the circumstances listed in clause 22.1 continues. Upon those circumstances ceasing to prevent, hinder or delay the performance of the obligations of the party relying upon it that party shall give written notice to the other party of this fact.
10.4 If either party is prevented from performing their obligations due to any of the circumstances listed in clause 22.1 for longer than one month either party may immediately terminate the Contract upon service of one month's written notice to the other party.
ASSIGNMENT AND SUB-CONTRACTING
Hugo shall be permitted to assign, sub-contract, or delegate in whole or in part any of its duties or the Services under this Contract without the prior written consent of the customer. The customer is not permitted to assign this contract without the express permission of Hugo.
12.1 Failure by the customer at any time to enforce the provisions of this Contract or to require performance by Hugo of any of the provisions of the Contract shall not be construed as a waiver of or as creating an estoppel in connection with any such provision and shall not affect the validity of the Contract or any part thereof or the right of the customer to enforce any provision in accordance with its terms.
13.1 A variation to this Contract shall only be valid if it has been agreed by both parties in writing.
14.1 Any party may terminate this Contract by giving the other party three months notice in writing.
14.2 If one of the parties commits a fundamental breach of its obligations under this Contract, then the other party may, without prejudice to any accrued rights or remedies, terminate this Contract by notice in writing having immediate effect.
14.3 Either party to this contract may terminate this Contract by notice in writing having immediate effect, without prejudice to any accrued rights or remedies, if any one or more of the following occurs:
14.3.2 Either parties' directors become bankrupt or make a composition or arrangement with its creditors, or has a proposal in respect of its company for voluntary arrangement for a composition of debts, or scheme of arrangement approved in accordance with the Insolvency Act 1986;
14.3.3 Either party has an application made under the Insolvency Act 1986 to the Court for the appointment of an administrative receiver or has an administrative receiver appointed;
14.3.4 Either party has a provisional liquidator, receiver, or manager of its business or undertaking duly appointed;
14.3.5 Either party has possession taken, by or on behalf of the holder of any debentures secured by a floating charge, of any property comprised in, or subject to, the floating charge;
14.3.6 Either party is in circumstances that entitle the Court or a creditor to appoint, or have appointed, a receiver, a manager, or administrative receiver or which entitle the Court to make a winding-up order;
14.4 If the customer terminates the Contract under this termination or any other clause it shall pay all sums due to Hugo without deduction.
15.1 In the event of a disagreement or dispute between the parties in relation to the Services or in relation to the interpretation of this Contract, the parties shall, in the first instance, endeavour to resolve the disagreement or dispute themselves or through their representatives.
15.2 In the event of a failure to reach an agreement in accordance with clause 29.1 above within 10 working days then the disagreement or dispute shall be referred to any mediation or conciliation procedure by reference to a third independent party agreed by the parties or failing agreement, appointed by the Authorised Officer. Any such mediation or conciliation will not be binding on the parties.
15.3 If such dispute or difference is not resolved within fourteen days of the dispute being referred to mediation or conciliation under clause 29.2 above then such dispute or difference shall if so agreed by the parties be referred to an arbitrator agreed between the parties or in default of such agreement to be nominated by the President of the Chartered Institute of Arbitrators and such a referral to arbitration shall be deemed to be a referral in accordance with the Arbitration Act 1996 and any statutory modification or re-enactment thereof for the time being in force.
15.4 The costs of mediation, conciliation and/or the appointment of the arbitrator shall be shared equally between the parties and the arbitrator shall determine which party shall pay any costs subsequently incurred.
16.1 All notices shall be in writing and shall be delivered by hand or sent by pre-paid first class recorded delivery post. Notices sent by post shall be deemed to have been received by the addressee 2 days after the day on which they were posted (excluding weekends and public holidays).
CONTRACTS (RIGHTS OF THIRD PARTIES)
17.1 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Contract and no person who is not a party to this Contract shall be entitled to enforce any of the provisions of the Contract pursuant to that Act.
18.1 This Contract is governed by, and is to be construed in accordance with, English law and the parties submit to the exclusive jurisdiction of the courts of England and Wales.
19.1 In the event that Hugo Technology become aware of an adverse incident meeting the criteria defined by medical device regulations, all necessary information shall be provided to the device OEM, who are required to provide confirmation back to Hugo that the information has been received and acted upon. If the OEM fails to submit confirmation to this effect back to Hugo Technology within 30 days, Hugo are obliged to report the incident directly to the competent authority.