TERMS AND CONDITIONS
TERMS AND CONDITIONS
1.1 In these Terms and Conditions unless the context otherwise requires, the following words have the following meanings:
“Agreement”
means the written agreement between the Client and Blue Fountain and
signed by the Client for supply of the Services formed by these
Conditions including but not limited to any order form, service
agreement, software licence, source code licence, maintenance
agreement, development agreement or other;
“Blue Fountain” means Blue Fountain Systems Ltd whose head office is at Liverpool Innovation Park, Edge Lane, Liverpool, L7 9NJ.
“Client” means the party who signed any Agreement with Blue Fountain.;
“Conditions” means these terms and conditions;
“Content” means any information of the Client required for the Services which is specified in the Agreement;
“Content
Delivery Schedule” means the schedule prepared by Blue Fountain and
provided to the Client detailing the dates by which the Content is to
be delivered to Blue Fountain;
“Delivery” means when a server is
turned as part of the Services or when the Works arrive at the Client’s
premises whichever is the earlier;
“Delivery Date” means the Milestone set out in the Agreement for delivery of the specified Services;
“Fee(s)” means the Fee(s) payable by the Client to Blue Fountain for the Services as set out in any Agreement;
“Intellectual
Property “Rights” means all vested, contingent and future intellectual
property rights including but not limited to patents, copyrights,
registered and unregistered trademarks, service marks, domain names,
database rights, registered designs, design rights, know-how,
inventions, get-up, confidential information, trade and business names,
and any other similar protected rights in any country subsisting now or
in the future together with, in relation to any of the foregoing
rights: (i) the right to sue for past infringements; (ii) any
applications for registration; and (iii) any licenses;
“Milestones” means dates that may be identified in any Agreement by when events shall occur;
“Payment
Schedule” means the Schedule detailing the dates, amount and manner of
payment to Blue Fountain for the provision of the Services as set out
in any Agreement.
“Services” means the services including the
provision of software and code licences, maintenance, training,
hosting, server provision, installation or support that Blue Fountain
agrees to provide to the Client in accordance with clause 3 of these
Conditions;
“Services Schedule” means any schedule detailing the Works and Services and their associated costs;
“Specification” means the specification for the Works and Services as set out in the Agreements;
“Works”
means any and all works and materials provided or developed by Blue
Fountain in the provision of the Services including without limitation,
any software, hardware and any ancillary materials.
1.2 In these
Conditions, unless the context otherwise requires: (a) words in the
singular include the plural and vice versa and words in one gender
include any other gender; and (b) a reference to: (i) “Blue Fountain”
includes any sub-contractor or agent of Blue Fountain for the purposes
of carrying out its obligations under the Agreement (ii) any party
includes its successors in title and permitted assigns.
1.3 In the
event of any conflict or inconsistency between these Conditions and (a)
any project plan; (b) the Payment Schedule; or (c) any Specification;
or (d) Services Schedule, or (e) the Schedule; (f) or any Agreement
between the Client and Blue Fountain, then these Conditions shall
prevail unless otherwise specifically stated in writing and signed by
the Client and Blue Fountain..
1.4 In these Conditions or any Agreement unless the context otherwise requires:
words importing any gender include every gender;
words importing the singular number include the plural number and vice versa;
words importing persons include firms, companies and corporations and vice versa;
references to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement;
reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
the headings to the clauses, schedules and paragraphs of this Agreement will not affect the interpretation;
any
reference to an enactment includes reference to that enactment as
amended or replaced from time to time and to any subordinate
legislation or byelaw made under that enactment;
any obligation on
any party not to do or omit to do anything is to include an obligation
not to allow that thing to be done or omitted to be done;
any party who agrees to do something will be deemed to fulfill that obligation if that party procures that it is done.
2. Agreements
2.1 These Conditions apply to all Agreements between Blue Fountain and the Client.
2.2
Any Agreement will be on these Conditions to the exclusion of all other
representations, warranties, terms and conditions whether rendered
prior to or subsequent to these Conditions (including without
limitation any terms or conditions which the Client purports to apply).
2.3
No action by Blue Fountain shall purport to its acceptance of any terms
or conditions of any Client or third party and Blue Fountain’s
Conditions shall always be subsequent to any other party’s terms and
conditions unless otherwise stated in writing by an authorised officer
of Blue Fountain.
2.4 Any order placed by the Client shall be deemed
an offer that shall be capable of acceptance by Blue Fountain and shall
be deemed accepted at the initial point of delivery of the services by
Blue Fountain.
3. The Services of Blue Fountain
3.1 Blue Fountain shall supply
the Client with the Services exercising reasonable care and skill and
comply with all necessary laws and regulation and shall indemnify the
Client against any losses and costs reasonably incurred by the Client
caused by Blue Fountain’s failure to comply Any indemnity from Blue
Fountain shall be limited to the maximum of £1,000,000.00 and the
responsibility for established physical damage is restricted to a limit
of £1000.00
3.2 The parties shall meet from time to time in order to
review progress on the provision of the Services and to agree any minor
variations to any Specification and Services Schedule.
3.3 The parties may enter into a new Agreement in respect of any requirement by the Client for variations which are substantial.
3.4
Subject to the Client’s compliance with clause 4, Blue Fountain shall
provide the Services in accordance with the applicable Agreement,
Specification and Services Schedule.
3.5 Blue Fountain is under no
obligation to handle technical enquiries from third parties following
completion of the Services. In the event of the Client requiring
maintenance or support services, these services will be for the
avoidance of doubt covered by these Conditions.
4. Orders
4.1 Any
tariffs, proposals, offers, forms or similar documents from Blue
Fountain shall not be treated as offers capable of acceptance by the
Client and shall be treated as invitations to treat only providing
information and do not place Blue Fountain under any obligations to
enter into any Agreement.
4.2 All orders for Services by the
Client shall be deemed offers to purchase the Services in accordance
with these Conditions and capable of acceptance by Blue Fountain who
shall not be obliged to make such acceptance.
4.3 Blue Fountain
vendors and representatives shall not be authorised to accept orders or
offers nor are they granted the right to enter into agreements on
behalf of Blue Fountain.
4.4 Photographs, drawings, descriptions,
illustrations or similar are provided only as a guide and no Services
shall be sold by sample.
5. Assistance from the Client
5.1
The Client shall at all times provide Blue Fountain with such
assistance, co-operation, information, entrance onto premises
permission, licences and source materials as may reasonably be
necessary to enable Blue Fountain to fulfill its obligations under the
Agreement.
5.2 The Client shall ensure at its own cost that it
possesses and shall make available to Blue Fountain all necessary
compatible material and software in good working order to enable Blue
Fountain to perform the Services.
5.3 The Client shall comply with
all necessary laws and regulations and shall fully indemnify Blue
Fountain against any losses and costs reasonably incurred by Blue
Fountain caused by the Client’s failure to comply. It shall be the
Client’s sole responsibility to ensure its compliance in accordance
with this clause 5.3.
5.4 The Client shall use best endeavours to ensure that its Content is secure.
5.5
The Client shall use best endeavours to ensure that any property of
Blue Fountain provided by Blue Fountain under the Agreement that is
under the control of the Client remains in good condition.
5.6
Following termination of the Conditions or the relevant Agreement, the
Client shall return any property as referred to in clause 5.5 to Blue
Fountain in the same condition as when provided by Blue Fountain
subject to normal wear and tear within 30 days from the termination..
5.7 The Client shall be charged for any delay in returning the property to Blue Fountain at a rate equal to £100 per day.
6. Term
6.1 The term of these Conditions shall commence when the
first Agreement with the Client commence and shall continue unless
terminated in accordance with these Conditions.
6.2 The term of any
Agreement shall be for a period of 36 months and shall automatically
continue for further 12 months subject to the provision under these
Conditions.
6.3 The term of the Agreement shall commence on the date
as set out in the applicable Agreement unless otherwise agreed in
writing and signed by an authorised officer of each of parties.
7. Delivery
7.1 Blue Fountain shall deliver the Services in
accordance with the Milestones with reasonable care and effort but
shall not be obliged to deliver in accordance with the Milestones.
7.2
If Delivery has not occurred at the end of 31 days following the
Delivery Date the Client shall request in writing that Blue Fountain
shall deliver the Services within ten working days of receipt by Blue
Fountain of that notice.
7.3 The Client shall be entitled to
terminate the Agreement relating to Blue Fountain’s failure to Deliver
and/or the Condition and termination shall be the only remedy available
to the Client under this clause 7.
Blue Fountain shall take all reasonable steps to provide advance notice to the Client that there is a potential waiting time liability. Blue Fountain shall take all reasonable steps to avoid the Client incurring waiting time charges.
7.5 The failure of the Client to provide any Content within thirty (30) working days of the due date (provided it has not elected to postpone the Services in accordance with clause 5.4 above) Blue Fountain shall be entitled to terminate the Agreement and termination shall be the only remedy available to Blue Fountain provided except for the Fees which shall be paid by the Client..
7.6 Blue Fountain reserves the right to charge the Client in respect of any additional work involved where the Content supplied by the Client is not clear, legible or is incomplete.
7.7 Risk in the Works shall pass to the Client on Delivery. If any part of the Works shall thereafter be lost, destroyed or damaged Blue Fountain shall promptly replace the same or similar subject to the Client paying the full cost of such replacement.
7.8 Blue Fountain shall supply the Services to the address provided by the Client unless otherwise agreed in writing by an authorized officer of each of the parties.
7.9 Any transportation, including by Blue Fountain or its agent or contractor is for the Blue Fountain’s account and at the Blue Fountain’s risk. Any costs in transportation or additional insurance incurred by Blue Fountain shall be borne by Blue Fountain.
7.10 The Services shall be inspected by the Client and shall notify Blue Fountain within 14 days of Delivery of any alleged defect, shortage or damage. Failure to do so shall be deemed as acceptance by the Client of Services.
8. Change Control
8.1 At any time prior to the Delivery Date Blue
Fountain may in writing recommend or and the Client in consideration of
a further payment may in writing request from time to time changes to
any part of the Specification. Notwithstanding anything to the
contrary in these Conditions neither party shall be under any
obligation to agree to any request or recommendation for a change.
8.2
Any investigation into the proposed change shall be carried out only on
the Client’s prior written instruction and following investigation (if
any) Blue Fountain will give a written estimate showing the increase or
decrease in the Fees and any related effect on other contractual
matters should the proposed change be implemented.
8.3 Should the
Client wish to proceed with the proposed change it will instruct Blue
Fountain in writing of its wish within 10 working days of
the receipt of the written estimate (or such longer period as may be
agreed). Those parts of these Conditions affected by the change
will then be deemed to be modified accordingly.
8.4 Until any change
is formally agreed between Blue Fountain and the Client Blue Fountain
will continue to perform and be paid for the Services as if the change
had not been proposed. If the proposed change represents a
significant alteration from the Specifications set out in any Services
Schedule then Blue Fountain may make a reasonable charge for
implementing the proposed change.
At any time requests to change the performance of any Services by way of modification or adaptation to technical standards commonly in force shall be notified to the Client. The Client shall approve or decline to approve to these changes within 10 working days of receipt of such a change notice. The Client shall not unreasonably withhold approval of the change notice.
.9. Payment
9.1 In consideration for performance of the Services, the Client shall pay the Fees in accordance with the Payment Schedule or Agreement, at the time set out therein.
9.2 All sums payable under any Agreement are exclusive of VAT and other taxes, if any, which shall be charged in addition at the prevailing rate and shall be paid by Client on submission of a valid tax invoice.
9.3 Title to any product, software, Works or any Services where applicable shall not pass to the Client until Blue Fountain has received full payment of the Fees or where any Works are hired to the Client the title shall remain with Blue Fountain in any event.
9.4 Furthermore, the Client shall pay such reasonable out -of- pocket expenses incurred by Blue Fountain as are agreed in writing in advance, together with such sums as may become due under these Conditions.
9.5 Payment of the Fees and other charges are due within 30 days of the date of receipt of an invoice by Client from Blue Fountain. Blue Fountain shall be free to issue any invoice at any time. Blue Fountain shall be entitled to charge interest on late payments at the rate of 4% above the base rate of Barclays Bank PLC current during that time on any amount outstanding, which is not paid in accordance with this clause. Blue Fountain is aware of its rights under the Late Payment of Commercial Debts (Interest) Act 1998.
9.6 Unless otherwise stated the Fees and tariffs are those in force at the time of payment being due and may be set out in the Payment Schedule.
9.7 For the avoidance of doubt and unless otherwise stated in writing the Client has sole responsibility for all payment of Fees.
9.8 Blue Fountain shall be entitled to increase any Fees and/or any Payment Schedule at its discretion with 30 days prior notice to the Client. The Client shall have the right to terminate the Agreement if such increase is not acceptable by the Client by giving written notice to Blue Fountain within 30 days from the receipt of Blue Fountain’s notice.
9.9 The Client authorises Blue Fountain to offset at any time and without notification any amounts owed to Client the amount owed by the Client to Blue Fountain.
9.10 Blue Fountain reserve the right to invoice any part of the Services under separate invoices.
9.11 Blue Fountain levy 15% maintenance fee per annum on all software developed for clients to cover bug fixes, software updates and security issues.
10. Intellectual Property Rights
10.1 Intellectual Property
Rights in the Works and Services or which arise out of or are acquired
in the performance of the Agreement are and shall remain vested in Blue
Fountain and the Client shall not be entitled to alter, amend, adapt or
use the Intellectual Property Rights without the prior written consent
of Blue Fountain.
10.2 All software developed by Blue Fountain Systems Ltd is released using the GNU Lesser General Public License http://www.gnu.org/copyleft/lesser.html.
10.3
Blue Fountain shall be entitled to include a footer credit or similar
in an appropriately unobtrusive manner containing an appropriate
acknowledgement of the Intellectual Property Rights of Blue Fountain
and of the work carried out by Blue Fountain including a link to own
web site at www.bluefountain.com.
10.4
Blue Fountain shall be entitled to use the trading names and trade
marks of the Client (in a reasonable manner) in the production of
corporate brochures, press releases and similar printed or online
materials solely for the purposes of promoting Blue Fountain and its
Services to third parties subject to the Client’s prior approval.
Blue Fountain shall supply the Client with copies of such use on
request.
10.5 The Client shall at the earliest opportunity: (a)
notify Blue Fountain of any infringement or suspected infringement by a
third party of Blue Fountain’s Intellectual Property Rights or misuse
of their confidential information, to the extent that they become aware
of such infringement or misuse; (b) notify Blue Fountain of any threat
or notice of proceedings claiming intellectual property infringement or
breach of confidence which is received and which relates to the
Services; and (c) provide Blue Fountain (at the other’s reasonable
expense) with all reasonable assistance that may be required in order
to deal with such infringement or claim.
10.6 All risks in the Works (if any) shall pass to the Client on delivery from Blue Fountain.
10.7
The Intellectual Property Rights in and to the Content shall remain
with the Client but shall be licensed to Blue Fountain for the purposes
of carrying out the Services. Such licence shall automatically cease on
termination of the relevant Agreement.
11. Confidentiality
11.1 For the purposes of this clause 11, Blue
Fountain’s “Information” as defined below includes all creative ideas
originating with Blue Fountain which are sufficiently original,
particularised, well developed and commercially valuable to constitute
confidential information at law which are notified to the Client, and
the Client acknowledges that such ideas shall always be communicated by
Blue Fountain in circumstances of confidentiality, expressed or
otherwise.
11.2 Each party (“the Recipient”) shall ensure that any
confidential information (“Information”) disclosed to it by the other
shall not be used or disclosed to any third party except its employee
and/or professional adviser to whom the Recipient shall ensure that the
Information is treated as confidential by them save as is strictly
necessary for the purposes of any Agreement and shall return to the
other promptly on request any such Information provided by the other on
any media.
11.3 The restriction contained in this clause 11 shall
not apply to the extent that (a) disclosure or use of the Information
is required by law; (b) evidence is available that the Information was
already in the unrestricted possession of the Recipient before
disclosure to it by the other party; or (c) the information falls
within the public domain other than through the default of the
Recipient.
11.4 The obligation of confidentiality in clause 11 shall continue in force for 5 years following termination of the Conditions.
12. Security and control
The Client shall during the continuance of the any Agreement:
12.1
effect and maintain adequate security measures to safeguard the
Services or the Works from access or use by any unauthorised person;
12.2 retain the Works and all copies thereof under the Client’s effective control;
12.3
maintain a full and accurate record of the Client's copying and
disclosure of the Works and shall produce such record to the Client on
request from time to time.
13. Liability
13.1 Nothing in these Conditions shall exclude or
restrict either party’s liability for: (a) death or personal injury
resulting from its negligence or that of its employees while acting in
the course of their employment; (b) fraud or fraudulent
misrepresentation; or (c) breach of the relevant warranties contained
in these Conditions or any Agreement..
13.2 Either party shall not
be liable to the party in contract, tort or otherwise howsoever arising
out of or in connection with the Agreement and/or the Conditions for
any indirect loss, consequential loss, loss of profits, business
opportunity, goodwill or reputation.
13.3 Any Works delivered to the
Client shall be treated where delivered as a group, as being covered
under a separate and specific Agreement.
13.4 Problems including but
not limited to technical problems, defects, non-delivery of part of the
Works shall not relieve the Client from its duty to make payments due
with respect to other Works.
13.5 The Client warrants that it is responsible for and is in receipt of all insurances necessary for any Works.
13.6
The Client warrants that it is responsible for the activities of any of
its agents, employees or contractors who are on Blue Fountain premises
or premises shared by the parties or leased or purchased for the
benefit of the Client.
13.7 In view of the technical limitations
inherent within the field of information communications and internet
technology Blue Fountain do not provide any warranties as to the
permanence of access or use of the Services, nor the quality, capacity
or volume of the Services beyond the warranty that Blue
Fountain’s performance of the Services shall be of a standard
consistent with normal professional standards in the information,
communications and technology industry.
13.8 Blue Fountain shall have no responsibility to repair or replace any damaged Works and the Client accepts that the Client shall return such Works to the manufacturer directly or via Blue Fountain at the Client’s sole expense.
13.9 Blue Fountain is not bound by any third party guarantee.
14. Suspension
14.1 Blue Fountain shall be entitled to suspend any Agreement without notice and without liability to itself where the Client:
14.1.1 has failed to pay the Fees at its fault;
14.1.2 has breached a warranty or term of the Agreement or Conditions;
14.1.3 has a simultaneous use of logins and passwords;
14.1.4 has failed to complete any necessary documentation;
14.1.5
has used the Services in an abusive or unlawful manner or has failed to
comply with any acceptable use policy or similar in the reasonable
opinion of Blue Fountain;
14.1.6 has a lack of security in the reasonable opinion of Blue Fountain;
14.1.7 has damaged the reputation of Blue Fountain.
14.2
Blue Fountain shall be entitled to continue invoicing the Client during
any period of suspension and shall be entitled to continue any other
Agreements not the subject of the suspension.
15. Termination
15.1 The Conditions and all Agreement or any
Agreement may be terminated at any time by mutual agreement or by
giving 12 months written notice to the other party.
15.2
Notwithstanding clause 15.1, a party (the “Initiating Party”) may
terminate the Conditions and all Agreement or any Agreement with
immediate effect by written notice to the other party (the “Breaching
Party”) on or at any time after the occurrence of:
(a) an irremediable material breach by the Breaching Party of the Conditions;
(b)
a remediable breach by the Breaching Party of a material obligation
under the Conditions or Agreement where the Breaching Party fails to
remedy the Breach within 30 days starting on the day after receipt of
written notice from the Initiating Party giving full details of the
breach and requiring the Breaching party to remedy the breach and
stating that a failure to remedy the breach may give rise to
termination under this clause 15.2; or
(c) more than one breach of
the Conditions or Agreement by the Breaching Party, the cumulative
effect of such breaches being: (i) sufficient to justify the inference
that the Breaching Party would continue to deliver a substandard
performance in relation to a substantial portion of the Agreement over
the entire remaining period of the Agreement (or, in the case of the
Client, in relation to its obligations under clause 4; or (ii) serious
in the widest sense of having a serious effect on the benefit which the
Initiating Party would have otherwise derived in relation to a
substantial portion of the Conditions or Agreement.
(d) if the
other is unable to pay its debts or enters into compulsory or voluntary
liquidation (other than for the purpose of effecting a reconstruction
or amalgamation) or compounds with or convenes a meeting of its
creditors or has a receiver, administrative receiver or administrator
appointed or if any circumstances arise which would entitle the Court
or a creditor to appoint a receiver, administrative receiver or
administrator or to present a winding-up petition or make a winding-up
order.
16. Consequences of Termination
16.1 Upon termination of the
Conditions and/ or any Agreement all rights granted in the Conditions
and/or the terminated Agreement shall cease and each party shall
immediately or as soon as possible deliver up to the other and
delivered to the second party or, at the request of the first party,
destroy any copies which are not readily deliverable (such as copies
held on the hard disk of any computer).
16.2 The termination of the
Agreement for whatever cause shall not affect any provision of the
Conditions or other Agreement which is expressed to survive or operate
in the event of the termination of the Agreement and shall not
prejudice or affect the rights of any party against the other in
respect of any breach of the Conditions or Agreement or in respect of
any monies payable by either party to the other in respect of the
period prior to termination.
17. Force Majeure
17.1 Neither party shall be liable in damages
or have the right to terminate any Agreement for any delay or default
in performing hereunder if such delay or default is caused by
conditions beyond its control including, but not limited to Acts of
God, Government restrictions (including the denial or cancellation of
any export or other necessary license), wars, insurrections and/or any
other cause beyond the reasonable control of the party whose
performance is affected.
18. Data protection
18.1 The parties undertake to comply with the
provisions of the Data Protection Act 1998 (the “Act”) and any related
legislation in so far as the same relates to the provisions and
obligations of the Conditions or Agreement.
18.2 Blue Fountain may
hold information relating to the Client’s non-payment, late payment or
other payment history which may be held subject to the Act with an
appropriate third party.
19. Exclusivity, Assignment and Sub-Contracting
19.1 Unless
otherwise agreed: (a) the Services shall not be exclusive to the Client
(meaning that Blue Fountain may provide equivalent services to any
third party); (b) Blue Fountain shall be entitled to sub-contract any
of the Services to a suitable third party but shall remain responsible
to the Client; (c) the parties shall not assign its rights or
obligations under any Agreement without the other party’s prior written
consent.
20. Waiver
20.1 Failure by the party to exercise or enforce any
right under any Agreement or these Conditions (including in the case of
suspension under clause 11) shall not be deemed to be a waiver of any
such right nor operate so as to prevent the exercise or enforcement of
such right on any other occasion.
21. Validity
21.1 If any part, term or provision of any Agreement
or these Conditions be held illegal or unenforceable, the validity or
enforceability of the remainder of that Agreement or these Conditions
shall not be affected.
22. Third Party Rights
22.1 The Contracts (rights of Third
Parties) Act 1999 shall not apply to any Agreement or these Conditions
and no person other than the parties to the Agreement or these
Conditions shall have any rights under them, nor shall they be
enforceable under that Act by any person other than the parties to them.
23. Agency, partnership
23.1 The Conditions or any Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in the Agreement.
24. Amendments
24.1 The Conditions and/or any Agreement may be altered or substituted by Blue Fountain by written notice issued by the authorised office of Blue Fountain not less than one month prior to the date on which such notice is stated to take effect. Such substitution shall not affect any fact, action or event, which predates such notice.
24.2 The Client is entitled to object such alteration or substation by giving notice to Blue Fountain within 10 days from receipt of notice from Blue Fountain under clause 24.1 and if any agreement is not reached before the effective date sated in the notice, the Client is entitled to terminate the Conditions and or any relevant Agreement.
25. Notice
25.1 All notices under any Agreement or Conditions shall be in writing.
25.2 Notices shall be deemed to have been duly given:
25.2.1
when delivered, if delivered by courier or other messenger (including
registered mail) during normal business hours of the recipient; or
25.2.2 when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
25.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
25.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid,
in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other party.
26. Entire Understanding
26.1 These Conditions and any Agreement
under them set out the entire agreement and understanding between the
parties in respect of its subject matter and the Client acknowledges
that it has entered into such Agreement in reliance only upon the
representations, warranties and promises expressly contained or
incorporated in these conditions and/or Agreement and save as expressly
set out therein, Blue Fountain shall have no liability in respect of
any other representation, warranties or promise made or given prior to
the date of the Agreements, howsoever made or given, unless it was made
or given fraudulently. Blue Fountan will abide by terms and conditions of signed Clients non disclosure agreements.
27. Successors and assignees
27.1 The Conditions and any
Agreement shall be binding upon, and inure to the benefit of, the
parties and their respective successors and permitted assignees, and
references to a party in any Agreement shall include its successors and
permitted assignees.
27.2 In any Agreement references to a party include references to a person:
27.2.1 who
for the time being is entitled (by assignment, novation or otherwise)
to that party's rights under that Agreement (or any interest in those
rights); or
27.2.2 who, as administrator, liquidator or otherwise, is entitled to exercise those rights,
and in particular those references include a person to whom those
rights (or any interest in those rights) are transferred or pass as a
result of a merger, division, reconstruction or other reorganisation
involving that party. For this purpose, references to a party's rights
under any Agreement include any similar rights to which another person
becomes entitled as a result of a novation of the Agreement.
27.3
The Client shall not be entitled to assign or transfer the benefits or
obligations of these Conditions or Agreement to any third party without
the prior written consent of Blue Fountain.
28. Non-solicitation
28.1 Both the Client and Blue Fountain agree
that while these Conditions is in force and for a period of thirty six
(36) months thereafter, they shall not directly or indirectly solicit
or offer employment to any of the other’s staff who have been involved
in or associated with any Agreement without the other’s prior written
consent.
29. Law and Jurisdiction
29.1 These Conditions and the Agreement
shall be governed by and construed in accordance with the laws of
England and the parties hereby submit to the exclusive jurisdiction of
its Courts.
