THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).
1. Interpretation
1.1. The following definitions and rules of interpretation apply in these Conditions.
Definitions:
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"Business Day" |
a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business; |
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"Charges" |
the charges payable by the Customer for the supply of the Services in accordance with clause 5 (Charges and payment); |
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"Commencement Date" |
has the meaning given in the Sponsorship Agreement; |
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"Conditions" |
these terms and conditions as amended from time to time in accordance with clause 11.7; |
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"Contract" |
the contract between NOF and the Customer for the supply of Services comprising the Sponsorship Agreement and these Conditions; |
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"Sponsorship Agreement" |
The written confirmation of Services issued by NOF to the Customer; |
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"Control" |
has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly; |
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"controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures" |
as defined in the Data Protection Legislation; |
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"Customer" |
the person, company or firm who purchases Services from the NOF as identified in the Sponsorship Agreement; |
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"Customer Brand" |
The branding of the Customer which the Customer has agreed NOF can use in connection with the Services; |
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"Customer Name" |
The business name of the Customer which the Customer has agreed NOF can use in connection with the Services; |
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"Customer Default" |
has the meaning set out in clause 4.2; |
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"Data Protection Legislation" |
the UK Data Protection Legislation and any other European Union 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; |
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"Intellectual Property Rights" |
patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up[and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world; |
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"Services" |
the services supplied by the NOF to the Customer as set out in the Sponsorship Agreement and any other services NOF agrees to provide the Customer in writing; |
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"NOF" |
NOF Energy Limited registered in England and Wales with company number 05933450; |
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"NOF Materials" |
has the meaning set out in clause 4.1.7; and |
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"UK Data Protection Legislation" |
all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended. |
1.2. Interpretation:
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 it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.4. Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.5. A reference to writing or written includes email but not fax.
2. Basis of contract
2.1. The Contract shall come into existence when NOF issues the Customer with the Sponsorship Agreement.
2.2. Any samples, drawings, descriptive matter or advertising issued by NOF, and any descriptions or illustrations contained in NOF's catalogues, brochures or 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.
2.3. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4. Any quotation given by the NOF shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.
3. Supply of Services
3.1. NOF shall supply the Services to the Customer in accordance with these Conditions and the Sponsorship Agreement in all material respects.
3.2. The Customer acknowledges and accepts that the supply of the Services is not exclusive to the Customer and NOF are free to enter into similar arrangements or agreements with third parties in NOF’s absolute and sole discretion.
3.3. NOF shall use reasonable endeavours to meet any performance dates specified in the Sponsorship Agreement, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.4. NOF reserve the right to amend the Sponsorship Agreement if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services. NOF shall notify the Customer in any such event.
3.5. NOF warrants to the Customer that the Services will be provided using reasonable care and skill.
3.6. The terms implied by sections 13 to 15 inclusive of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
4. Customer's obligations
4.1. The Customer shall:
4.1.1. ensure any information it provides is complete and accurate;
4.1.2. co-operate with NOF in all matters relating to the Services;
4.1.3. provide NOF, its employees, agents, consultants and subcontractors with access to any facilities as reasonably required by NOF;
4.1.4. provide NOF with such information and materials as NOF may reasonably require in order to supply the Services, including Customer Brand and the Customer Name and shall ensure that such information, materials or branding are complete and accurate in all material respects;
4.1.5. obtain and maintain all necessary licences, permissions and consents which may be required for, or in connection with the Services before the date on which the Services are to start;
4.1.6. comply with all applicable laws, including health and safety laws;
4.1.7. keep all materials, equipment, documents and other property of NOF (NOF Materials) provided to the Customer in safe custody at its own risk, maintain the NOF Materials in good condition until returned to the NOF, and not dispose of or use the NOF Materials other than in accordance with the NOF's written instructions or authorisation;
4.1.8. comply with any additional obligations as notified by NOF;
4.1.9. comply with all requirements of any venue used in the provision of the Services, including without limitation, any terms and conditions between NOF and a venue owner or its authorised representative; and
4.1.10. make good, if required, any damage caused by the Customer or its representatives to any venue used in the provision of the Services to the reasonable satisfaction of NOF and / or the venue owner at the Customer's own cost.
4.2. The Customer shall indemnify NOF for all losses arising under or in connection with the Contract, whether in contact, tort (including negligence), breach of statutory duty or otherwise for any breach caused by them or failure to comply with clause 4.1.
4.3. If NOF's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation ("Customer Default"):
4.3.1. without limiting or affecting any other right or remedy available to it, NOF shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays NOF's performance of any of its obligations;
4.3.2. NOF shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the NOF's failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.3.3. the Customer shall indemnify NOF for any costs or losses sustained or incurred by NOF arising directly or indirectly from the Customer Default.
5. Charges and payment
5.1. The Charges for the Services shall be as set out in the Sponsorship Agreement and any additional Charges which are agreed between NOF and the Customer in writing.
5.2. NOF shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom NOF engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the NOF for the performance of the Services, and for the cost of any materials.
5.3. NOF shall be entitled to invoice the Customer any time after it issues the Sponsorship Agreement.
5.4. The Customer shall pay each invoice submitted by NOF:
5.4.1. within 30 days of the date of the invoice; and
5.4.2. in full and in cleared funds to a bank account nominated in writing by NOF, and time for payment shall be of the essence of the Contract.
5.5. NOF reserve the right to charge an administrative fee of £20.00 where any payment is over 60 days old to reflect the additional costs of recovery.
5.6. All amounts payable by the Customer under the Contract, including any expenses incurred, are exclusive of amounts in respect of value added tax chargeable (except where stated) from time to time ("VAT"). Where any taxable supply for VAT purposes is made under the Contract by NOF to the Customer, the Customer shall, on receipt of a valid VAT invoice from NOF, pay to NOF such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.7. If the Customer fails to make a payment due to NOF under the Contract by the due date, then, without limiting NOF's remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.6 will accrue each day at 8% a year above the Bank of England's base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
5.8. The Customer must be a member of NOF and have paid your annual subscription to NOF at the time the activity takes place or service is due to be delivered to access member rate. Should the Customer cease to be a member of NOF prior to the date the activity is due to take place or service is due to be delivered NOF reserves at its absolute and sole discretion the right to issue an invoice for the difference between the member rate and the non-member rate.
5.9. Subject to clause 5.10, all amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5.10. NOF at its absolute and sole discretion may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by NOF to the Customer
6. Intellectual property rights
6.1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by NOF.
6.2. All Intellectual Property Rights in the provision of the Services and to any materials produced in respect of the Services by or on behalf of NOF shall be the sole and exclusive property of NOF and if the Customer acquires, by operation of law, title to any such Intellectual Property Rights it shall assign them to NOF on request, whenever that request is made.
6.3. The Customer hereby warrants that it has all necessary permissions, consents and/or licenses to use all photographs, images, videos or other forms of media, (including the Customer Branding and Customer Name) it provides to NOF for use in connections with the Services. In particular, the Customer hereby warrants that it has received the express and informed consent of any person who appears in any such photograph, image, video or other form of media to its use.
6.4. The Customer grants NOF a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the NOF for the term of the Contract for the purpose of providing the Services.
6.5. The Customer shall indemnify NOF against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by NOF arising out of or in connection with the Customer’s breach of this clause 6.
6.6. The Customer shall not sub-license, assign or otherwise transfer the rights granted in this clause 6.
7. Data protection
7.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation. In this clause 7, Applicable Laws means (for so long as and to the extent that they apply to the NOF) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the Data Protection Legislation from time to time in force in the UK and any other law that applies in the UK.
7.2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and NOF is the processor.
7.3. NOF will use any personal information the Customer provides to:
7.3.1. provide the Services;
7.3.2. process payment for the Services; and
7.3.3. inform the Customer about similar services that NOF provide, but the Customer may stop receiving these at any time by contacting NOF.
7.4. Without prejudice to the generality of clause 7.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to NOF for the duration and purposes of the Contract.
7.5. Without prejudice to the generality of clause 7.1, NOF shall, in relation to any personal data processed in connection with the performance by NOF of its obligations under the Contract:
7.5.1. process that personal data only on the documented written instructions of the Customer unless NOF is required by Applicable Laws to otherwise process that personal data. Where NOF is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, NOF shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit NOF from so notifying the Customer;
7.5.2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
7.5.3. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
7.5.4. assist the Customer, at the Customer's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
7.5.5. notify the Customer without undue delay on becoming aware of a personal data breach;
7.5.6. at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data; and
7.5.7. maintain complete and accurate records and information to demonstrate its compliance with this clause 7.
7.5.8. We may transfer personal data outside the European Economic Area (EEA).
7.5.8.1. Where We transfer your personal data out of the EEA, We ensure a similar degree of protection is afforded to it by ensuring at least one of the following safeguards is implemented:
7.5.8.2. We will only transfer your personal data to countries that have been deemed to provide an adequate level of protection for personal data by the European Commission.
7.5.8.3. Where We use certain service providers, We may use specific contracts approved by the European Commission which give personal data the same protection it has in Europe.
7.5.8.4. Where We use providers based in the US, We may transfer data to them if they are part of the Privacy Shield which requires them to provide similar protection to personal data shared between Europe and the US.
7.5.9. Please contact Us if you want further information on the specific mechanism used by Us when transferring your personal data out of the EEA.
7.6. The Customer consents to NOF appointing a third-party processor of Personal Data under the Contract.
7.7. Either party may, at any time on not less than 30 days' notice, revise this clause 7 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
8. Limitation of liability
8.1. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
8.1.1. death or personal injury caused by negligence;
8.1.2. fraud or fraudulent misrepresentation; and
8.1.3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2. Subject to clause 8.1, NOF's total liability to the Customer in respect of all losses arising under or in connection with the Contract, whether in contact, tort (including negligence), breach of statutory duty or otherwise shall in no circumstances exceed the Charges paid for the Services by the Customer under the Contract.
8.3. NOF shall in no circumstances be liable to the Customer for:
8.3.1. loss of profits;
8.3.2. loss of sales or business;
8.3.3. loss of agreements or contracts;
8.3.4. loss of anticipated savings;
8.3.5. loss of use or corruption of software, data or information;
8.3.6. loss of or damage to goodwill; and
8.3.7. indirect or consequential loss.
8.4. This clause 8 shall survive termination of the Contract.
9. Termination
9.1. Without affecting any other right or remedy available to it, NOF may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer:
9.1.1. commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
9.1.2. takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
9.1.3. suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
9.1.4. financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.2. Without affecting any other right or remedy available to it, NOF may terminate the Contract with immediate effect by giving written notice to the Customer if:
9.2.1. the Customer fails to pay any amount due under the Contract on the due date for payment or within 14 days of being notified to do so; or
9.2.2. there is a change of Control of the Customer.
9.3. Without affecting any other right or remedy available to it, NOF may suspend the supply of Services under the Contract or any other contract between the Customer and NOF if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 9.1.1 to clause 9.1.4, or NOF reasonably believes that the Customer is about to become subject to any of them.
10. Consequences of termination
10.1. On termination of the Contract:
10.1.1. the Customer shall immediately pay to NOF all of NOF's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, NOF shall submit an invoice, which shall be payable by the Customer immediately on receipt;
10.1.2. the Customer shall return all of NOF's Materials and any NOF Materials which have not been fully paid for. If the Customer fails to do so, then NOF may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.2. Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
10.3. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
11. General
11.1. Force majeure.
11.1.1. NOF shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control following which NOF shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
11.1.2. If a Force Majeure Event takes place that affects the performance of NOF's obligations under the Contract:
11.1.2.1. NOF will contact the Customer as soon as reasonably possible to notify them; and
11.1.2.2. NOF's obligations under the Contract will be suspended and the time for performance of such obligations will be suspended for the duration of the Force Majeure Event. NOF may, at its sole discretion, use reasonable commercial endeavours to arrange a new date for performance of the Services with the Customer after the Force Majeure Event is over but shall not be obliged to do so.
11.2. Assignment and other dealings.
11.2.1. The NOF may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
11.2.2. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract [without the prior written consent of the NOF.
11.3. No partnership or agency
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
11.4. Confidentiality.
11.4.1. Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.4.2.
11.4.2. Each party may disclose the other party's confidential information:
11.4.2.1. to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 11.3; and
11.4.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.4.3. Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
11.5. Non-solicitation
The Customer shall not attempt to procure services or Deliverables that are competitive with the Services from any of NOF's directors, employees or consultants, whether as an employee or on a freelance basis, during the period that NOF are providing the Services to the Customer and for a period of six months following termination of the Contract.
11.6. Entire agreement.
11.6.1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
11.6.2. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in the Contract.
11.6.3. Nothing in this clause shall limit or exclude any liability for fraud.
11.7. Variation.
Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by NOF (or their authorised representatives).
11.8. Waiver.
A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
11.9. Severance.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.10. Notices.
11.10.1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to email address specified in the Sponsorship Agreement.
11.10.2. Any notice or communication shall be deemed to have been received:
11.10.2.1. if delivered by hand, on signature of a delivery receipt and
11.10.2.2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
11.10.2.3. if sent by email, at the time of transmission, or, if this time falls outside Business Hours, when business hours resume.
11.10.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.11. Third party rights.
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
11.12. Governing law.
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
11.13. Jurisdiction.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
