GENERAL TERMS & CONDITIONS
Interpretation
1.1 Definitions. In these Conditions, the following definitions apply:
Statement of Work, means the form to be prepared by the Supplier and completed and signed by the Client and, in the absence of such form, the specifications as shall be agreed between the Supplier and the Client in writing from time to time.
Business Day, means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Client, means the person or firm who enter into an arrangement to purchase Services from the Supplier as set out in the Statement of Work.
Client Data, means data, in whatever form, owned, held and/or controlled by the Client which is made available to the Supplier or is otherwise created, collated or collected and/or accessed by the Supplier in connection with the Services;
Client Materials, means any materials provided by the Client to the Supplier.
Client Software, means all software, the Intellectual Property Rights in which are owned by the Client, or licensed to the Client by a Third Party (other than for the purposes of or pursuant to the Services) which are required to be used by the Supplier for the purposes of or pursuant to the Services.
Conditions, means these terms and conditions as amended from time to time in accordance with clause 11.8.
Contract, means the contract between the Supplier and the Client for the supply of Services in accordance with these Conditions and the Statement of Work if and as may be signed by the Client from time to time and the signing of the Statement of Work and/or the delivery of the Services by the Supplier to the Client shall be deemed to be unconditional acceptance by the Client of these Conditions and the Statement of Work.
Contract Commencement Date, means the date set out in the Statement of Work.
Contract Term, means the term set out in the Statement of Work.
Data Protection Legislation, shall mean all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
Deliverables, means all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services.
Experts, means the experts to be sourced and introduced to the Client.
Intellectual Property Rights, means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Service Fees, means the fees payable by the Client for the supply of the Services in accordance with clause 5 and the Statement of Work, including expenses incurred and Materials.
Services, means the services, including the Deliverables, provided by the Supplier to the Client as set out in the Statement of Work and Specification or as may be agreed in writing between the parties from time to time.
Services Commencement Date, has the meaning given to it in the Statement of Work.
Specification, means the description or specification of the Services provided in writing by the Client to the Supplier.
Supplier, means Polar Insight Limited a company registered in England and Wales whose registered address is 68-80 Hanbury Street, London, E1 5JL and company number 10587770.
Supplier Materials means all materials, equipment, documents and other property of the Supplier the Intellectual Property Rights in which are owned by the Supplier and which are either Deliverables or are incorporated in Deliverables, excluding Third Party Materials.
Support Services, means the support services to be provided as set out in Schedule 1.
Third Party Materials, means all materials which are proprietary to any third party and which are either Deliverables or are incorporated in Deliverables, excluding Supplier Materials.
UK GDPR, shall have the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body whether or not having separate legal personality;
1.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 a reference to writing or written includes e-mails.
2. Basis of contract
2.1 The Statement of Work constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The offer to purchase the Services from the Supplier shall be deemed to be accepted and the Contract shall come into existence on the Contract Commencement Date as indicated in the Statement of Work or, in the absence of a Statement of Work, signed or otherwise, on the date in which the Supplier performed any act in the provision of any of the Services.
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's promotional printed matters, 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.
2.4 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue and all amounts quoted by the Supplier under the Contract are exclusive of Value Added Tax as chargeable from time to time.
3. Supply of Services
3.1 The Supplier shall supply the Services and the Support Services to the Client in accordance with the Statement of Work and Specification in all material respects.
3.2 The Supplier shall use all reasonable endeavours to ensure Experts provided under the Services are in accordance with the Specification.
3.3 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Statement of Work or otherwise, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.4 The Supplier shall have the right to make any changes to the Services, which are necessary to comply with any applicable law, regulation or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Client in any such event.
3.5 The Supplier warrants to the Client that the Services will be provided using reasonable care and skill.
4. Client's obligations
4.1 The Client shall:
4.1.1 ensure that the terms of the Statement of Work and Specification (and any information it provides) are complete and accurate;
4.1.2 co-operate with the Supplier in all matters relating to the Services;
4.1.3 provide a response to the Supplier within 48 hours of the Supplier finding an Expert and agree to communicate with the Supplier in a timely manner throughout;
4.1.4 provide the Supplier, its employees, agents, consultants, subcontractors and Experts as reasonably required by the Supplier, with access to Client Data, Client's Materials, Client Software;
4.1.5 provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
4.1.6 obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;
4.1.7 keep and maintain all the Supplier Materials at the Client's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation;
4.1.8 agree not to solicit, approach or communicate with any Expert whether directly or indirectly, unless with the prior written consent of the Supplier; and
4.1.9 comply with any additional obligations as set out in the Statement of Work.
4.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
4.2.1 the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays the Supplier's performance of any of its obligations;
4.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3 the Client shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Client Default, regardless of whether the Services are completed.
5. Service Fees and payment
5.1 The Service Fees for the Services shall be invoiced by the Supplier and paid by the Client, all as set out in the Statement of Work, in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
5.2 The Supplier reserves the right to increase the Service Fees from time to time and will provide written notice to the Client of any such increase.
5.3 Without limiting any other right or remedy of the Supplier, if the Client fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to charge interest on the overdue amount at the rate of four per cent per annum above the then current Bank of England's base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
5.4 The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Supplier to the Client.
6. Intellectual property rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
6.2 The Client acknowledges that, in respect of any Third Party Intellectual Property Rights, the Client's use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Client.
6.3 All Supplier Materials are the exclusive property of the Supplier.
7. Data Protection
7.1 The parties shall comply with their data protection obligations as set out in the Data Protection Legislation.
7.2 Any personal data processed by the Supplier in respect of a Contract shall be done in accordance with clause 5.1 and the Supplier’s Privacy Policy found: https://www.polarinsight.com/privacy-policy.
8. Confidentiality
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 7 shall survive termination of the Contract.
9. Limitation of liability
9.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
9.1.2 fraud or fraudulent misrepresentation; or
9.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
9.2 Subject to clause 9.1:
9.2.1 the Supplier shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
9.2.2 the Supplier's total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the value of the Service Fees paid under the Contract.
9.3 Whilst every effort is made by the Supplier to give satisfaction to the Client by ensuring reasonable standards of skills, integrity and reliability from Experts and further to provide them in accordance with the Specification, the Supplier is not liable for any loss, expense, damage or delay arising from the negligence, dishonesty, misconduct or lack of skill of the Expert.
9.4 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.
9.5 This clause 8 shall survive termination of the Contract.
10. Termination
10.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
10.1.1 the other party commits a material breach of the Contract and if such a breach is remediable fails to remedy that breach within seven days of that party being notified in writing of the breach;
10.1.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or being a company is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or being an individual is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or being a partnership has any partner to whom any of the foregoing apply;
10.1.3 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than where a company for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
10.1.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party being a company other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
10.1.5 the other party being an individual is the subject of a bankruptcy petition or order;
10.1.6 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
10.1.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party being a company;
10.1.8 a floating charge holder over the assets of that other party being a company has become entitled to appoint or has appointed an administrative receiver;
10.1.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
10.1.10 any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.1.2 to clause 9.1.9 inclusive; or
10.1.11 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
10.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment.
10.3 Without limiting its other rights or remedies, each party shall have the right to terminate the Contract by giving the other party a written notice for the period set out in the Statement of Work.
10.3.1 This includes for contract renegotiation if the pricing tariff agreed at contract signature is no longer appropriate for the volumes required, defined as two subsequent 3-month periods (‘quarters’) where volumes are more than 25% higher or lower than first anticipated.
10.4 Without limiting its other rights or remedies, the Supplier shall have the right to suspend provision of the Services under the Contract or any other contract between the Client and the Supplier if the Client becomes subject to any of the events listed in clause 9.1, or the Supplier reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.
11. Consequences of termination
11.1 On termination of the Contract for any reason:
11.1.1 the Client shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Client immediately on receipt;
11.1.2 the Client shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then the Supplier may enter the Client's premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
11.1.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, 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; and
11.1.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
12. General
12.1 Force majeure:
12.1.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, a pandemic or default of suppliers or subcontractors.
12.1.2 The Supplier shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
12.2 Assignment and subcontracting:
12.2.1 The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
12.2.2 The Client shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
12.3 Notices:
11.3.1 Any legal notice or other communication given or made under this Agreement shall be in writing and may be given by either hand delivery, prepaid first class post or email
11.3.2 Any such notice which is given in accordance with Clause 11.3.1 above, shall be deemed to have been received with the other party in accordance with the contact details set out in the Statement of Work or at any such address or contact details as shall be provided by the parties in writing from time to time:
(a) at the time of delivery if delivered by hand;
(b) on the second working day following the day of sending the notice by prepaid first class post;or
(c) on despatch in the case of a facsimile transmission or electronic mail, provided that the sender does not receive any indication that the electronic mail message or facsimile transmission has not been successfully transmitted to the intended recipient.
12.4 Waiver:
12.4.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
12.4.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
12.5 Severance:
12.5.1 If a court or any other competent authority finds that any provision or part of any provision of the Contract is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
12.5.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
12.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
12.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
12.8 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by the Supplier.
12.9 Entire agreement: The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
12.10 Implied terms: These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Governing law and jurisdiction: This Contract, 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.