Terms of Business
SECTION A – GENERAL TERMS
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions (including each Section) the following words and expressions have the following meanings unless inconsistent with the context:
“Additional Charges” – any expenses, taxes, duties or other charges levied by any Governmental or authority in respect of or by reason of the sale, delivery, export or import of the Deliverables, courier and messenger costs, archiving and any other additional costs, expenses or charges incurred by FMAW in connection with delivery of the Services and/or the Deliverables;
“Applicable Laws” – all applicable laws, statutes, regulations and other similar instruments from time to time in force in the United Kingdom;
“Bundle” – the combination of one or more Courses (as defined in Section C), applications to become a Member (as defined in Section B) or contracts for the provision of Consultancy Services (as defined in Section D) which together form the Deliverables as set out in the Contract Details;
“Client” – the person which has accepted these Conditions as set out in the Contract Details;
“Client Equipment” – any apparatus and equipment required by FMAW for the supply of the Deliverables, including those detailed in the Contract Details;
“Client Materials” – all Intellectual Property Rights, Materials, information and documents provided to the Client, including computer programs, data, reports and specifications and any such requirements set out in the Contract Details;
“Commencement Date” – the date on which the Contract comes into existence in accordance with Condition 2.5 of this Section A;
“Confidential Information” – without limitation, business, commercial, economic, financial, operational, technical, administrative, marketing, planning and staff information and data relating to the Supplying Party or its interests disclosed including any Intellectual Property Rights to the Receiving Party whether before, during or after the provision of the Deliverables, whether in written, oral, pictorial or any other form, and all information, data, know-how, trade secrets, formulae, processes, designs, photographs, drawings, specifications, software programs, samples or other material attributable to or deriving its existence from the provision of the Deliverables. “Supplying Party” and “Receiving Party” shall have the meanings ascribed in Condition 9 of this Section A;
“Conditions” – these General Terms and the Specific Terms stated to apply in the Contract Details;
“Contract” – any agreement for the supply of Deliverables from FMAW to the Client in accordance with Condition 2.5 of this Section A;
“Contract Details” – the specific details of the Contract confirmed by FMAW in writing to the Client prior to delivery of the Deliverables including any Proposal;
in respect of the Client, the acquisition of either:
a) the voting rights attaching to 25% or more of the voting shares in the Client; or
b) the power to direct or cause the direction and management of the policies of the Client in accordance with the acquirer’s wishes, whether as a result of the ownership of shares, control of the board of directors, contract or any powers conferred by the articles of association or other constitutional documents of the Client;
“Costs” – all costs, (including but not limited to any legal fees (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by FMAW (either directly or by a third party) including disbursements, VAT and other expenses;
“Data Protection Legislation” – the UK Data Protection Legislation and any other legislation relating to personal data 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); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party;
“Deliverables” – Goods, Services, Materials and all products developed by FMAW or its agents, contractors and employees as part of or in relation to the Services in any form, including, without limitation, training courses and materials, examination materials, accreditations, computer programs, data, reports and specifications (including drafts);
“Delivery Location” – the location for delivery (including an e-mail address or other online location or portal where e-delivery is agreed) of the Deliverables as set out in the Contract Details;
“Due Date” – the due date for payment of FMAW’s invoices, as set out in Condition 4.1 of this Section A;
“FMAW” – Fertility Matters At Work C.I.C a community interest company incorporated in England and Wales with company number 13429490 and registered address at 25 Brunts Street, Mansfield, Nottinghamshire, NG18 1AX;
“General Terms” – means the general terms and conditions set out in this Section A;
“Goods” – all goods supplied by FMAW to the Client pursuant to the Contract as detailed in the Contract Details;
a party is insolvent if:
a) it 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
b) it 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; or
c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with its winding up; or
d) 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 it; or
e) a floating charge holder over its assets has become entitled to appoint or has appointed, an administrative receiver; or
f) a person becomes entitled to appoint a receiver over its assets or a receiver is appointed over its assets; or
g) being an individual, it is the subject of a bankruptcy application or petition or order; or
h) a creditor or encumbrancer of it attaches or takes possession of, or a distress, execution, sequestration or enforcement, taking of control pursuant to schedule 12 of the Tribunals, Courts and Enforcement Act 2007 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 10 Working Days; or
i) a person serves a notice of enforcement under paragraph 7 of schedule 12 of the Tribunals, Courts and Enforcement Act 2007; or
j) any event occurs, or proceeding is taken, in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in paragraphs (a) to (i) above (inclusive); or
k) it suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
“Intellectual Property Rights” – all patents, industrial designs, rights to inventions, utility models, copyright and related rights, trademarks, 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 and “Intellectual Property Right” means any one of the Intellectual Property Rights;
“Invoice” – any form of payment request provided by FMAW in writing;
“Materials” – all documents, videos, guides, training materials, e-learning courses, technology, concepts, ideas, data, programmes or software (including source and object codes), specifications, plans, drawings, schedules, minutes, schemes, formulae, designs, systems, processes, logos, marks, literature, styles, reports, designs, artwork, models, prototypes, photographs, films, sound recordings or any other documents, works or materials (in whatever form and on whatever media held) embodying information in any form;
“Normal Working Hours” – 09:00 to 17:00 during Working Days;
“Price” – the price due from the Client for the supply of the Deliverables as detailed in the Contract Details;
“Proposal” – any proposal, tender, estimate, scope of works or quotation submitted to the Client by FMAW prior to the Contract being made, including but not limited to the proposal set out in the Contract Details;
“Services” – the services to be provided by FMAW to the Client pursuant to the Contract and detailed in the Contract Details;
“Specification” – the description or specification of the Deliverables as set out in the Contract Details;
“Specific Terms” – the terms and conditions relevant to the Deliverables to be supplied by FMAW, as indicated in the Contract Details and as set out in Section B through to Section D;
“Term” – as set out in the Contract Details;
“UK Data Protection Legislation” – all applicable data protection and privacy legislation in force from time to time in the UK including but not limited to the General Data Protection Regulation ((EU) 2016/679) as retained from European law; the Data Protection Act 2018; and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended;
“Unpaid Amount” – any sum due to FMAW under the Contract which has not been paid by the Client to FMAW by the Due Date;
“VAT” – value added tax or any equivalent tax chargeable in the UK or elsewhere; and
“Webinar Materials” – all Intellectual Property Rights, Materials, information and documents provided to the Client by FMAW in connection with the delivery of any webinars, including, but not limited to, any videos or video recordings, computer programs, data, reports and specifications and any such requirements as may be set out in writing to the Client;
“Working Day” – any day from Monday to Friday other than a statutory holiday or public holiday in England.
1.2 References to any statute or statutory provision include, unless the context otherwise requires, a reference to the statute or statutory provision as modified or re-enacted and in force from time to time, and any subordinate legislation made from time to time under the relevant statute or statutory provision.
1.3 References to “persons” include natural persons, firms, partnerships, companies, corporations, associations and organisations, (in each case whether or not having separate legal personality).
1.4 Use of any gender includes the other genders.
1.5 Words in the singular include the plural and words in the plural include the singular.
1.6 Any reference to “writing” or any cognate expression includes communications by post and email but excludes facsimile and text messages.
1.7 The headings to Conditions do not affect the interpretation of these Conditions.
1.8 Any phrase introduced by the term “include”, “including”, “in particular” or any similar expression will be construed as illustrative and will not limit the sense of the words preceding that term.
1.9 A reference to a “Holding Company” or a “Subsidiary” means a holding company or a subsidiary as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in sections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee) by way of security or in connection with the taking of security, or (b) its nominee.
2. BASIS OF CONTRACT
2.1 These Conditions shall apply to the sale and supply by FMAW of all Deliverables purchased by the Client. These Conditions shall govern the Contract to the exclusion of any other terms and conditions introduced or submitted by the Client.
2.2 No variation of these Conditions shall be binding and no collateral or supplemental contract may be made or construed, unless agreed in writing by FMAW.
2.3 Any Proposal will not constitute an offer and shall remain valid for the period stated therein, but if no period is specified such Proposal shall be valid for 30 days from the date of issue. Notwithstanding this Condition 2.3 of this Section A, FMAW reserves the right to determine that any Proposal shall no longer be valid where a sub-contractor or supplier changes its charges.
2.4 Each order or acceptance of a Proposal for the supply of Deliverables by the Client shall be deemed to be an offer by the Client to purchase the Deliverables subject to these Conditions.
2.5 These Conditions shall bind the Client when the Contract Details are signed by the Client at which point a “Contract” shall come into existence between FMAW and the Client and such date shall be the “Commencement Date.” As from the Commencement Date, the Client will be bound to pay the Price and any Additional Charges.
2.6 Each Contract shall consist of and incorporate the following, in order of priority:
2.6.1 the Contract Details to the extent that they expressly amend these Conditions, including any Proposal expressly appended to the Contract Details;
2.6.2 the Specific Terms stated as being applicable in the Contract Details;
2.6.3 the General Terms; and
2.6.4 the Contract Details to the extent that they do not expressly amend these Conditions.
2.7 FMAW is under no obligation to accept any order, and no order shall be regarded as having been accepted by FMAW, unless or until the circumstances set out in Condition 2.5 of this Section A apply.
2.8 Without prejudice to any other right FMAW has under any other Condition of this Contract, FMAW may cancel an order before the supply of Deliverables is due on the provision of at least 20 days’ written notice to the Client. FMAW shall not be liable to the Client in relation to any loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Client as a result of cancellation.
2.9 Where FMAW confirms the details of the Contract in writing, the Client shall bring any discrepancies to FMAW’s notice within 72 hours of the written confirmation or be bound by the details contained mentioned or referred to in the written confirmation of the Contract.
2.10 In the event that the Client’s procedures require an Invoice to be submitted against a purchase order for payment, the Client shall issue the purchase order before the Contract comes into existence.
2.11 FMAW’s employees or agents are not authorised to make any representations concerning the Deliverables unless confirmed by FMAW in writing. In entering into the Contract, the Client acknowledges that it does not rely on any such representations which are not so confirmed save that nothing in this Condition excludes FMAW’s liability for fraudulent misrepresentation.
3.1 The Price and any Additional Charges (where known at the Commencement Date) are as stated in the Contract Details.
3.2 FMAW may increase its charges, including but not limited to the Price and/or Additional Charges by giving written notice to the Client together with particulars for such request. Where FMAW provides notice to the Client of an increase in the Price and/or Additional Charges under this Condition 3.2 of Section A, the Client may provide notice to FMAW within 5 Working Days of receipt that of that notice that it does not accept the increased Price and/or Additional Charges. Where the Client does not accept the increased Price and/or Additional Charges, unless FMAW elects otherwise, FMAW’s obligations to fulfil that part of the Contract to which the increase relates shall terminate and the provisions of Condition 12.4 of this Section A shall apply.
3.3 The Client shall reimburse FMAW for all reasonable expenses, including travel and accommodation expenses arising from any request for the provision of the Deliverables at a specific location and any other reasonable expenses notified to the Client in writing, properly and necessarily incurred by FMAW in the course of the Contract subject to production of receipts or other appropriate evidence of payment.
3.4 The Price and any Additional Charges are exclusive of any value added tax (“VAT”) or other taxes or duties which may arise in relation to the supply of the Deliverables by FMAW, which the Client shall be liable to pay to FMAW at the prevailing rate subject to receiving notice of such amounts, together with a valid VAT invoice, from FMAW.
4. PAYMENT TERMS
4.1 Unless otherwise stated in the Contract Details or in the Specific Terms:
4.1.1 FMAW shall be entitled to submit an Invoice to the Client for the Price and where applicable any Additional Charges in accordance with this Contract on or at any time after the Commencement Date. In the event that any Additional Charges arise following the issue by FMAW of the invoice, FMAW will submit an Invoice to the Client as and when the Additional Charges arise; and
4.1.2 the Client shall pay each Invoice from FMAW within 30 days of the date of the Invoice or by such earlier point as set out in the Contract Details or the Specific Terms (the “Due Date”) and, where applicable, shall pay FMAW’s expenses incurred in accordance with Condition 3.2 of this Section A within 10 Working Days of FMAW’s request for such payment.
4.2 The Client shall make payment for the Price and, where applicable, any Additional Charges in sterling by electronic transfer or such other payment method as agreed by the Parties in writing, into such bank account as notified by FMAW in writing from time to time. Unless agreed otherwise in writing any payment received by FMAW in any other currency or by any other method will not be deemed to be payment for the Deliverables in question. Payment will not be deemed payment for the Deliverables in question unless and until it is received in full and in cleared funds.
4.3 FMAW may (at its discretion) accept payment of the Price and any Additional Charges by debit or credit card. If FMAW accepts payment by debit or credit card, the Client shall provide up-to-date and complete contact and billing details, and hereby authorises FMAW to bill such payment card for the Price and any Additional Charges on or after the date that such charges become payable to FMAW.
4.4 If the Client fails to pay in full any Invoice from FMAW by the Due Date or breaches the terms of the Contract without prejudice to any other right or remedy FMAW may have:
4.4.1 FMAW shall be entitled to:
a) cancel or suspend access to the Deliverables or any further deliveries of Deliverables to the Client under the Contract;
b) charge the Client interest (both before and after any judgment) on the Unpaid Amount at a rate of 8% a year above the base rate for the National Westminster Bank, and such interest shall accrue on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgement; and
c) appropriate any payment made by the Client to such of the Deliverables (or goods and/or services supplied under any other order) as FMAW may, in its reasonable discretion, think fit.
4.5 The Client shall indemnify FMAW for Costs including disbursements, VAT and other expenses that are reasonably incurred by FMAW (either directly or indirectly or by a third party) in seeking or securing payment of any Unpaid Amount or pursuing any claim for damages for breach of the Contract. For the avoidance of doubt, the limitations set out in Condition 11 of this Section A do not apply to the indemnity in this Condition 4.5 of this Section A.
4.6 Any queries and disputes from the Client regarding any Invoice must be received prior to the Due Date.
5.1 The Deliverables are as described in the Specification and the relevant Specific Terms.
5.2 FMAW may, subject to prior written notice to the Client, change the Deliverables in order to comply with any Applicable Law, safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the Price for the Deliverables.
5.3 If either party wishes to change the scope or execution of the Deliverables, it shall submit details of the requested change to the other in writing.
5.4 If either party requests a change to the scope or execution of the Deliverables, FMAW shall, within a reasonable time, and where reasonably practicable, provide a written estimate to the Client of:
5.4.1 the likely time required to implement the change;
5.4.2 any variations to the Price arising from the change;
5.4.3 the likely effect of the change on the Contract Details; and
5.4.4 any other impact of the change on the Contract.
5.5 If the Client wishes FMAW to proceed with the change, FMAW has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to the Price and the Contract Details.
5.6 Notwithstanding the generality of Conditions 5.2 through to 5.5 of this Section A, FMAW may make changes to the Deliverables or the Contract:
5.6.1 to reflect good industry practice and guidance;
5.6.2 to correct errors;
5.6.3 to accommodate minor or temporary changes to dates, locations, speakers, tutors and presenters, which do not impact on the overall provision of the Deliverables;
5.6.4 to accommodate changes to dates, locations, speakers, tutors and presenters which are necessary as a result of events outside FMAW’s control, including but not limited to circumstances where Condition 15.1 would otherwise apply to the Contract;
5.6.5 by adding or removing optional elements of the Deliverables; and/or
5.6.6 if a third party such as a government body, an awarding body, regulator or professional institute which governs any part of the Deliverables imposes such changes on FMAW, such as amending a regulation, policy or procedure, changing a syllabus or method of assessment,
and shall submit details of such changes to the Client within a reasonable period and consult with the Client with respect to such changes.
6. CLIENT OBLIGATIONS
6.1 The Client warrants that it will:
6.1.1 co-operate with FMAW in all matters relating to the Deliverables and in particular promptly and fully respond to all communications from FMAW relating to the supply of the Deliverables;
6.1.2 provide, in a timely manner, such Client Materials as FMAW may request;
6.1.3 ensure all Client Materials are accurate in all material respects;
6.1.4 set up the Client Equipment in accordance with FMAW’s instructions;
6.1.5 ensure that all Client Equipment is in good working order and suitable for the purposes for which it is used in relation to the Deliverables and conforms to all relevant United Kingdom standards or requirements;
6.1.6 enter into, and comply with the terms of, any third-party end-user licences or agreements which it is necessary to agree to in order to access the Deliverables;
6.1.7 take all reasonable precautions to ensure the health and safety of FMAW, its employees, agents, or sub-contractors whilst at the Delivery Location and will inform FMAW of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Delivery Locations;
6.1.8 obtain before the date on which the Deliverables are to start and maintain all necessary licenses and consents and comply with all relevant legislation in relation to the Deliverables and the use of the Client Materials; and
6.1.9 carry out all additional actions specified in the Contract Details by the times and dates set out therein.
6.2 If FMAW’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, sub-contractors or employees:
6.2.1 FMAW shall not be liable for any Costs, losses or charges sustained or incurred by the Client arising directly or indirectly from such prevention or delay; and
6.2.2 FMAW shall be allowed a reasonable extension of time to perform its obligations following the delay caused by the Client.
6.3 FMAW may charge the Client for any additional reasonable costs and expenses incurred by FMAW caused by the Client’s instructions, failure to provide instructions, or failure to comply with Condition 6.1 of this Section A.
7. SUPPLY OF THE DELIVERABLES
7.1 Unless otherwise specified in the Contract Details or the Specific Terms, the Deliverables shall be performed at such times as agreed by FMAW and the Client.
7.2 Subject to the remainder of this Condition 7, FMAW warrants that it shall:
7.2.1 insofar as is reasonably practicable supply the Deliverables to the Client in accordance with the Specification in all material respects;
7.2.2 provide the Deliverables using reasonable skill and care;
7.2.3 use personnel who are suitably skilled and experienced to perform tasks assigned to them;
7.2.4 obtain and maintain during the Term, all necessary licences and consents that it needs to carry out its obligations under the Contract in respect of the Deliverables; and
7.2.5 use reasonable endeavours to meet any Anticipated Delivery Dates specified in the Contract Details, but any such dates shall be estimates only and time shall not be of the essence for performance of the Deliverables.
7.3 FMAW provides no guarantee or warranty that any result or objective can or will be achieved or attained at all or by a given completion date or any other date, whether stated in the Contract Details or elsewhere.
7.4 Subject as expressly provided in these Conditions, all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. In particular, FMAW makes no warranty as to the fitness of the Deliverables for any particular purpose unless that purpose is stated in the Client’s order, nor that any result or objective can or will be achieved or attained at all or by a given completion date or any other date, whether stated in the Contract Details or elsewhere. This exclusion includes recommendations or advice from FMAW to the Client relating to a specific enquiry. The Client must satisfy itself as to the fitness for the purpose for which the Deliverables are intended.
7.5 FMAW shall not be liable for a breach of any of the warranties in Condition 7.2 of this Section A unless the Client gives written notice of the defect to the person identified in the Contract Details. In the event of a defect which is not apparent on delivery the Client shall inform FMAW of such defect immediately on discovery of the defect but in any event within 7 Working Days of delivery.
7.6 FMAW shall not be liable for breach of warranty under Condition 7.2 of this Section A if:
7.6.1 the Client makes any further use of such Deliverables after giving notice under Condition 7.5 of this Section A unless FMAW otherwise agrees; or
7.6.2 the Client alters the Deliverables without the prior written consent of FMAW.
7.7 Where any valid claim in respect of the Deliverables is made by the Client, FMAW shall be entitled at its option to:
7.7.1 re-perform, replace, repair or correct the Deliverables (or the part in question) found not to conform to warranty at FMAW’s cost; or
7.7.2 refund to the Client the Price (or a proportionate part of the Price) of the relevant part of the Deliverables found not delivered or not to conform to warranty,
and subject to Condition 11.1 of this Section A, FMAW shall have no further liability to the Client.
7.8 Any claim by the Client under this Condition 7 of this Section A in respect of any Deliverables shall not entitle the Client to withhold or delay payment in respect of any other Deliverables in respect of which no such claim has been made whether or not those Deliverables form part of the same consignment.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 The Client acknowledges that FMAW is the owner or the licensee of all Intellectual Property Rights in the Deliverables. Under no circumstances shall any of the Intellectual Property Rights transfer to the Client other than as expressly stated within these Conditions and/or the Contract Details.
8.2 FMAW grants to the Client a non-exclusive licence (without the right to sub-licence) to use any Intellectual Property Rights in the Deliverables for the sole purpose of making reasonable use of the Deliverables for the purpose intended by FMAW.
8.3 The Client shall provide the Client Materials to FMAW for the purpose of the provision of Deliverables and shall grant to FMAW a non-exclusive non-transferable licence to use any Client Materials solely for the purpose of providing the Deliverables.
8.4 The Client shall indemnify and hold FMAW harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by, FMAW as a result of or in connection with any alleged or actual infringement, whether or not under English law, of any third party’s Intellectual Property Rights or other rights arising out of the use of the Client Materials.
8.5 Without prejudice to any other rights or remedies that FMAW may have, each party acknowledges and agrees that damages alone may not be an adequate remedy for any breach of these Conditions or the Contract. Accordingly, FMAW shall have the right seek remedies of injunctions, specific performance or other equitable relief for any threatened or actual breach of these Conditions or the Contract.
9. PROTECTION OF CONFIDENTIAL INFORMATION
9.1 Each party (“Receiving Party”) shall keep the Confidential Information of the other party (“Supplying Party”) confidential and secret. The Receiving Party shall only use the Confidential Information of the Supplying Party as necessary in relation to the supply of the Deliverables (in the case of FMAW) or as necessary for the purpose of making reasonable use of the Deliverables (in the case of the Client) and for performing the Receiving Party’s obligations under the Contract. The Receiving Party shall inform its officers, employees and agents of the Receiving Party’s obligations under the provisions of this Condition 9 of this Section A, and ensure that they meet such obligations.
9.2 The obligations of Condition 9.1 of this Section A shall not apply to any information which:
9.2.1 was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Supplying Party;
9.2.2 is, or becomes, publicly available through no fault of the Receiving Party;
9.2.3 is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
9.2.4 was developed by the Receiving Party (or on its behalf) without direct access to, or use or knowledge of the Confidential Information supplied by the Supplying Party; or
9.2.5 is required to be disclosed by order of a court of competent jurisdiction.
9.3 This Condition 9 of this Section A shall survive termination of the Contract.
10. DATA PROTECTION
10.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Condition 10.1 of this Section A is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
10.2 FMAW anticipates that it shall act as a data controller (as defined by Data Protection Legislation) in respect of any personal data processed under the Contract. In the event that FMAW is or becomes a data processor (as defined by Data Protection Legislation), the Client agrees that it shall enter into a data processing agreement with FMAW in a mutually agreed format.
10.3 FMAW warrants that, to the extent it processes any personal data belonging to the Client, its personnel and sub-contractors it shall only use such personal data as set out in its general external privacy notice in place from time to time, which is accessible at https://fertilitymattersatwork.com/privacy-policy/.
11. LIMITATION OF LIABILITY
11.1 FMAW has obtained reasonable insurance cover in respect of its own legal liability. The limits and exclusions in this Condition 11 of this Section A reflect the insurance cover FMAW has been able to arrange and the Client is responsible for making its own arrangements for the insurance of any excess loss.
11.2 Nothing in these Conditions shall limit or exclude FMAW’s liability for:
11.2.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
11.2.2 fraud or fraudulent misrepresentation;
11.2.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
11.2.4 any matter in respect of which it would be unlawful for FMAW to exclude or restrict liability.
11.3 Subject to Condition 11.2 of this Section A, FMAW shall have no liability in respect of any:
11.3.1 special, indirect consequential or pure economic loss, costs, damages, charges or expenses;
11.3.2 loss of profits;
11.3.3 loss of sales or business;
11.3.4 loss of agreements or contracts;
11.3.5 loss of anticipated savings;
11.3.6 loss of use or corruption of software, data or information;
11.3.7 loss of or damage to goodwill.
11.4 Subject to Condition 11.2 of this Section A, FMAW’s total liability to the Client shall not exceed the lesser of: (a) the total Price; and (b) £250,000.
11.5 Subject to Condition 11.2 of this Section A, FMAW shall have no liability under these Conditions or otherwise if the Deliverables have not been paid for by the Due Date.
11.6 Except as expressly and specifically provided in these Conditions:
11.6.1 the Client assumes sole responsibility for results obtained from the use of the Deliverables by the Client, and for conclusions drawn from such use. FMAW shall have no liability for any damage caused by errors or omissions in connection with the Deliverables, or any actions taken by FMAW at the Client’s direction;
11.6.2 any information provided as part of the Deliverables does not constitute professional or medical advice and is for educational purposes only. Information provided in the Deliverables is not a substitute for advice on the specific circumstances of the Client or for the exercise of appropriate judgement, skill and care. Whilst every effort has been made to ensure the information in the Deliverables is accurate and up-to-date, FMAW accepts no responsibility for any acts or omissions in relation to any subject matter of the Deliverables in whatever form;
11.6.3 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by Applicable Laws, excluded from the Contract; and
11.6.4 the Deliverables are provided to the Client on an “as is” basis.
11.7 The Client shall indemnify and hold FMAW harmless from all claims and all liabilities, costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by FMAW as a result of or in connection with any claim made against FMAW or any liability, loss, damage, injury, cost or expense sustained by FMAW, or FMAW’s employees or agents, or by any third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the use of the Deliverables as a consequence of a direct breach or negligent performance of the Contract by the client.
12. TERMINATION AND CONSEQUENCES
12.1 Without prejudice to any other remedies or rights whether under the Contract or otherwise, FMAW may terminate the Contract by written notice to the Client and the notice taking effect as specified in the notice if:
12.1.1 the Client commits a material or persistent breach of any of these Conditions, and (if such a breach is remediable), fails to remedy that breach within 30 Working Days, or such other time period deemed appropriate by FMAW at the time, of being notified in writing (acting reasonably);
12.1.2 the Client fails to pay any sum due by the Due Date;
12.1.3 the Client becomes Insolvent;
12.1.4 the Client does, or omits to do, anything which in FMAW’s reasonable opinion could damage or have an adverse impact on FMAW’s reputation, Intellectual Property Rights or goodwill;
12.1.5 there is a change in Control; or
12.1.6 FMAW reasonably apprehends that any of the events mentioned above is about to occur and notifies the Client accordingly.
12.2 For the purposes of Condition 12.1.1 of this Section A, a breach shall be considered capable of remedy if the Client can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).
12.3 Either party may terminate the Contract at any time by providing 20 Working Days’ written notice to the other.
12.4 Upon termination of the Contract:
12.4.1 the Client shall immediately pay to FMAW all outstanding Invoices, and in respect of any part of the Price and Additional Charges or other sums payable by the Client but for which no Invoice has been submitted, FMAW may submit an Invoice which shall be payable on receipt;
12.4.2 any licence granted by these Conditions shall terminate and the Client shall immediately cease all use of the Deliverables;
12.4.3 the Client shall return, delete or destroy all Client Materials and, if requested by FMAW, shall provide written confirmation that it has done so;
12.4.4 the Client shall, upon request by FMAW, return, delete or destroy all Webinar Materials and provide written confirmation that it has done so;
12.4.5 each party shall return, delete or destroy all Confidential Information and all other information which has been provided to it by the other party belonging to that other party in whatever medium in accordance with the instructions of that other party;
12.4.6 each party shall be relieved of and released from all of its duties and obligations under the Contract except those set out in Conditions 1, 2, 8, 9, 10 and Conditions 12 to 15 (inclusive) of this Section A; and
12.4.7 the accrued rights and remedies of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
12.5 Where the Client terminates other than for reasons of FMAW’S default, FMAW shall be entitled to recover on an indemnity basis all costs incurred in relation to those Deliverables provided to the Client together with all costs incurred in relation to those Deliverables not yet provided to the Client but in relation to which FMAW is unable to recover such costs.
The Client agrees that it shall not, and shall procure that no member of its Group shall, without the prior written consent of FMAW, at any time during the term of the Contract and for a period of 6 months after the termination or expiry of the Contract, solicit or entice away or attempt to solicit or entice away from FMAW or employ any person who is, or has been, engaged as an employee, consultant or subcontractor of FMAW in relation to the performance of the Contract.
14. DISPUTE RESOLULTION
14.1 The parties shall resolve any dispute, controversy, or claim arising out of or relating to the Contract, or the breach, termination or invalidity hereof (each, a “Dispute”), in accordance with the provisions of Conditions 14.2 through to 14.4 of this Section A. The procedures set forth in Conditions 14.2 through to 14.4 of this Section A shall be the exclusive mechanism for resolving any Dispute that may arise from time to time and Conditions 14.2 through to 14.4 of this Section A are express conditions precedent to litigation of the Dispute.
14.2 A party shall send written notice to the other party of any Dispute (“Dispute Notice”). The parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between senior executives of their respective organisations or, in the case of the Client being an individual, between the Client and senior executives of FMAW. In the event that the Dispute is not resolved on an informal basis during the time period ending 30 days after the Dispute Notice (the last day of such time period, the “Escalation to Mediation Date”), either party may initiate mediation under Condition 14.3 of this Section A.
14.3 Subject to Condition 14.2 of this Section A, the parties may, at any time after the Escalation to Mediation Date, submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the Dispute and the relief requested. The parties shall cooperate with one another in selecting a mediation service, and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The parties covenant that they will use commercially reasonable efforts in participating in the mediation. The parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the parties.
14.4 The parties further agree that all offers, promises, conduct, and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts, and attorneys, and by the mediator and any employees of the mediation service, are confidential, privileged, and inadmissible for any purpose, including impeachment, in any litigation, arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.
14.5 If the parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either party to agree to enter into mediation or agree to any settlement proposed by the mediator, within 60 days after the Escalation to Mediation Date, either party may file suit in accordance with Condition 15 of this Section A.
15. GENERAL PROVISIONS
15.1 Force Majeure
15.1.1 FMAW shall have no liability to the Client under the Contract if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of FMAW or any other party), failure of a utility service or transport or telecommunications 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, pandemic or epidemic.
15.1.2 FMAW shall promptly notify the Client in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 7 days, either party may terminate the Contract by written notice to the other and the termination provisions at Condition 12 of this Section A shall apply.
15.2.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at the address set out in the Contract Details or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. Any notice:
a) sent by recorded post shall be deemed served at the time that it is signed for or, where it is not signed for, on the second Working Day following posting;
b) delivered personally shall be deemed served at the time of personal delivery, provided the same occurs on a Working Day; and
c) sent by email shall be deemed served at the time of transmission provided that the transmission occurs on a Working Day, and on the next Working Day following transmission where transmission does not occur on a Working Day.
15.2.2 To prove service it shall be sufficient to show that the email was transmitted to the email address of the other party or that the envelope containing the notice was properly addressed and posted.
15.2.3 Each party warrants to the other that at all times during the Contract it has provided the other with up to date and accurate contact details, including a current postal address and email address and that it will promptly provide to the other written notice of any change to its’ postal address or email address.
15.3 Entire agreement
This Contract constitutes the entire agreement between the parties in relation to its subject matter, supersedes any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
15.4 No partnership or agency
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 another party in any way.
15.5 Further assurance
Each party to the Contract shall at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of the Contract or to make it easier to enforce.
15.6 Assignment and other dealings
15.6.1 FMAW will not without the prior written consent of the Client, assign, transfer, charge, sub-contract or deal in any other manner with all or any part of its rights or obligations under the Contract. The Client shall not, without the prior written consent of FMAW, assign, transfer, charge, sub-contract or deal in any manner with all or any of its rights or obligations under the Contract.
15.6.2 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions shall remain in full force and effect.
15.6.3 A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by either party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. 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.
15.7 Cumulative remedies
All rights and remedies available to either of the parties under the terms of the Contract or under the general law are to be cumulative, and no exercise by either of the parties of any such right or remedy is to restrict or prejudice the exercise of any other right or remedy granted by the Contract or otherwise available to that party.
15.8 Third party rights
A person who is not a party to the Contract will not have any rights under any term of the Contract.
15.9 Governing law and jurisdiction
The 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.
SECTION B – MEMBERSHIP
1. DEFINITIONS AND INTERPRETATION
1.1 In this Section B, in addition to the words and expressions set out in Section A, the following words and expressions have the following meanings unless inconsistent with the context:
“Accreditation Criteria” – the criteria set by FMAW including becoming an Accredited Member, as amended and updated by FMAW from time to time and the current version of which is published within the Membership platform;
“Accredited Member” – a Member who is granted “Fertility Friendly” status in accordance with the Accreditation Criteria;
“Member” – any Client who is granted “Committed to becoming Fertility Friendly” status by FMAW and any Accredited Member;
“FMAW Usage Guide” – any guidelines issued by FMAW on the use of any logo or other identifier which a Member is permitted to use by FMAW, as amended and updated by FMAW from time to time;
“Renewal Period” – the period during which a Client can renew their membership by paying the Subscription Fee as notified to Members by FMAW from time to time;
“Subscription Fee” – the annual fee payable to FMAW in respect of a Client as set out in the Contract Details and as notified to the Client by FMAW from time to time.
2.1 Where the Client applies to become a Member, FMAW shall determine at its sole discretion whether the Client shall be permitted to become a Member.
2.2 By virtue of becoming a Member, the Client shall be entitled, for the duration of its time as a Member, to the benefit of such membership benefits as FMAW specifies in the Contract Details or as agreed by the parties in writing.
2.3 In applying to become a Member, the Client warrants that:
2.3.1 it has read and accepts the terms of this Contract;
2.3.2 all information provided by the Client to FMAW regarding the Client’s application to become a Member is complete, accurate and up to date;
2.3.3 it is not aware of any circumstances in relation to its application to become a Member which FMAW reasonably believes may bring FMAW into disrepute or otherwise have a detrimental impact on FMAW’s reputation, standing, Intellectual Property Rights and goodwill;
2.3.4 it is not Insolvent; and
2.3.5 it has not previously been excluded from being a Member for any reason.
2.4 Unless otherwise stated by FMAW, if successful in its application, the Client shall be an Member of FMAW. FMAW may at its sole discretion deem the Client suitable to be an Accredited Member.
2.5 Notwithstanding any agreement or approval by FMAW to the Client becoming a Member, the Client shall not be deemed a Member whilst any Subscription Fee is outstanding and shall not be entitled to do anything to hold themselves out as a Member or otherwise associated or affiliated with FMAW in any way.
2.6 Whilst a Member, the Client shall:
2.6.1 comply with the Contract at all times;
2.6.2 maintain all necessary qualifications, approvals, accreditations or other requirements specified by FMAW, including the Accreditation Criteria where applicable;
2.6.3 promptly provide any information or documentation requested by FMAW, whether to document compliance with the Accreditation Criteria or otherwise;
2.6.4 use reasonable endeavours to promote the aims and objectives of FMAW;
2.6.5 participate in any check-in calls scheduled with FMAW;
2.6.6 in relation to any logo or other identifier which FMAW permits the Member to use or identify itself with, comply with the FMAW Usage Guide;
2.6.7 at its discretion, grant FMAW a non-exclusive licence to use the Client’s logo, name, branding or other identifier and any Intellectual Property Rights therein for the purposes of advertising that the Client is a Member and promoting FMAW and FMAW’s principles, including through displaying such on FMAW’s website and in social media posts made by FMAW;
2.6.8 not do, or omit to do, anything which FMAW reasonably believes may bring FMAW into disrepute or otherwise have a detrimental impact on FMAW’s reputation, standing, Intellectual Property Rights or goodwill;
2.6.9 immediately notify FMAW of any criminal conviction it receives.
2.7 FMAW shall be entitled at its sole discretion to vary a Member’s status including (but not limited to):
2.7.1 promoting a Member to an Accredited Member on that Member meeting the Accreditation Criteria;
2.7.2 reducing the status of an Accredited Member to that of a Member where the Accredited Member ceases to meet the Accreditation Criteria; and
2.7.3 reducing the status of an Accredited Member to that of a Member, as a result of any failure to comply with the requirements of Condition 2.6 of this Section B.
3. SUBSCRIPTION FEES
3.1 The Client shall pay the Subscription Fee when applying to become a Member and annually during each Renewal Period. The Subscription Fee is payable in accordance with Condition 4 of Section A.
3.2 FMAW will confirm the Subscription Fee for each year in writing at the start of each Renewal Period. For the avoidance of doubt, FMAW is entitled to vary the Subscription Fee annually at its sole discretion.
4. TERMINATION OF MEMBERSHIP
4.1 FMAW shall be entitled to terminate the Member’s status as a Member immediately on notice to the Member:
4.1.1 if the Member ceases to meet the Accreditation Criteria at any time;
4.1.2 if the Member is Insolvent;
4.1.3 if the Member receives any criminal conviction;
4.1.4 if FMAW notifies the Member that it is in breach of the Contract and the Member fails to remedy such breach within 10 Working Days of being notified of such breach in writing by FMAW; or
4.1.5 if the Member does anything which FMAW reasonably believes may bring FMAW into disrepute or otherwise have a detrimental or prejudicial impact on FMAW’s reputation, standing, Intellectual Property Rights or goodwill.
4.2 Where the Member does not pay the Subscription Fee when due during the Renewal Period, the Member’s status as a Member shall immediately terminate on expiry of the Renewal Period without any further notice being given to the Member.
4.3 The Member may terminate its status as a Member at any time by giving written notice to FMAW.
4.4 On termination or expiry of the Member’s status as a Member:
4.4.1 the Member shall immediately cease to hold itself out as an Member, including but not limited to ceasing to use any logo or other identifier provided by FMAW to Members;
4.4.2 the Member shall not be entitled to any refund of the Subscription Fee;
4.4.3 where reasonably requested by FMAW, the Member shall return any Deliverables which relate to, or which it has been provided with by virtue of, its’ status as an Member;
4.4.4 FMAW’s obligations to it shall automatically terminate; and
4.4.5 its right to attend any event, course or accreditation or use any Materials provided by FMAW shall cease.