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B2B Terms and Conditions

B2B Terms and Conditions

 

The Customer’s attention is particularly drawn to the provisions of clause 13.
 

1.         Interpretation

In these Conditions, the following definitions apply:

Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.

Commencement Date: has the meaning set out in Clause 2.2.

Conditions: these terms and conditions as amended from time to time in accordance with Clause 16.9.

Contract: the contract between Thriiver and the Customer for the supply of Goods and/or Services comprising the Order Acknowledgement and these Conditions.

Customer (“You”, “Your”): the person or firm who purchases the Goods and/or Services from Thriiver.

Customer’s Equipment: any equipment, including tools, systems, cabling or facilities, provided and/or made available by You, Your agents, subcontractors or consultants which are used directly or indirectly in the supply of the Services

Deliverables: the deliverables set out in the Order Acknowledgement.

Delivery Location: has the meaning set out in Clause 4.1.

Force Majeure Event: has the meaning given to it in Clause 16.1(a).

Goods: the goods (or any part of them) set out in the Order Acknowledgement.

Thriiver (“Us”, “Our”, “We”): Thriiver Limited, The Courtyard, Holmsted Farm, Staplefield Road, Cuckfield, West Sussex, Rh37 5JF registered in England and Wales with company number 03415976. VAT Registration number GB 700602494.

Thriiver Fee Schedule: the list of service fees charged by Us from time to time.

Our Materials: has the meaning set out in Clause 8.1(g).

Intellectual Property Rights: all patents, 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.

Order: Your order for the supply of Goods and/or Services, as set out in Your purchase order form, Your written order or Your order placed via Our website as the case may be.

Order Acknowledgement: the order acknowledgement form issued by Us in accordance with Clause 2.2.

Services: the services supplied to You by Us as set out in the Order Acknowledgement.

Service Specification: the description or specification for the Services set out in the Order Acknowledgement.

 

1.1      Construction.

In these Conditions, the following rules apply:

  1. a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
  2. b) a reference to a party includes its successors or permitted assigns;
  3. c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
  4. d) any phrase introduced by the terms including, include, in particular or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms;
  5. e) any obligation on a party not to do something includes an obligation not to allow that thing to be done; and
  6. f)   a reference to writing or written includes digital communications (including e-mails).

 

2.         Basis of Contract

2.1     The Order constitutes an offer by the You to purchase Goods and/or Services in accordance with these Conditions.

2.2     The Order or any order sent to Us will be accepted entirely at Our discretion and if so accepted, will only be accepted upon these Conditions when We issue an Order Acknowledgement to You at which point and on which date the Contract will come into existence the Commencement Date.

2.3     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. You acknowledge that You have not relied on, and will have no remedies in respect of any statement, promise, assurance, warranty or representation made or given (whether innocently or negligently) by or on behalf of Us which is not set out in the Contract.

2.4     Any samples, descriptive matter or advertising issued by Us and any descriptions of the Goods or illustrations or descriptions of the Services contained in Our catalogues, brochures or on Our website are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They will not form part of the Contract nor have any contractual force.

2.5     These Conditions apply to the Contract to the exclusion of any other terms that You seek to impose or incorporate, or which are implied by law, trade, custom, practice or course of dealing.

2.6     Any quotation given by Us will not constitute an offer, and is only valid for a period of thirty (30) Business Days from its date of issue or as explicitly set out in writing by Us.

2.7     All of these Conditions will apply to the supply of both Goods and Services except where application to one or the other is specified.

2.8     You waive any right You might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of Yours that is inconsistent with these Conditions.
 

3.         Goods

3.1     The Goods are described in Our Order Acknowledgement.

3.2     We reserve the right to amend the specification of the Goods (including any changes to packaging or trade dress) provided that these changes do not have a material impact on the capabilities, performance or the quality of the Goods.

3.3     We reserve the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
 

4.         Delivery

4.1     We will deliver the Goods at or to the location set out in the Order Acknowledgement or such other location as the parties may agree (Delivery Location) at such time as is specified in the Order Acknowledgement (or otherwise agreed in writing by the parties).

4.2     Delivery of the Goods will be completed on the Goods’ arrival at the Delivery Location (or if the Goods are to be delivered by Us ex-works then upon collection from the Delivery Location by the You or Your nominee).

4.3     We may deliver the Goods in instalments, which may be invoiced and paid for separately. References in this Contract to the Goods will, where applicable, be read as references to instalments.

4.4     Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. Delays in the delivery of the Goods will not entitle You to refuse to take delivery of the Goods. We will not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or Your failure to provide Us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.5     We will have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or Your failure to provide Us with adequate delivery instructions for the Goods, or any relevant instruction related to the supply of the Goods.

4.6     If the Goods are made available for delivery to the You in accordance with Clause 4.1 and You fail to accept or take delivery of the Goods then (except where such failure or delay is caused by a Force Majeure Event or by Our failure to comply with Our obligations under the Contract in respect of the Goods) We have the option to give You five (5) Business Days’ notice in writing to accept or take delivery. After this period:

  1. a) delivery of the Goods will be deemed to have been completed at 9.00 am on the fifth Business Day following the day on which We notified You that the Goods were ready; and
  2. b) We will store the Goods until delivery takes place, and charge the You for all related costs and expenses (including insurance).

 

5.         Quality of Goods

5.1     Subject to Clause 3, We warrant that on delivery, and for a period of 12 months (or such period specified in the Order Acknowledgement) from the date of delivery (Warranty Period), the Goods will:

  1. a) conform in all material respects with their description and any specification of the Goods in the Order Acknowledgement;
  2. b) be free from material defects in design, material and workmanship;
  3. c) be of satisfactory quality (within the meaning of the of Sale of Goods Act 1979).

5.2     Subject to Clause 5.3, if:

  1. a) You give notice in writing during the Warranty Period that some or all of the Goods do not comply with the warranty set out in Clause 5.1;
  2. b) We are given a reasonable opportunity of examining such Goods; and
  3. c) You (if asked to do so by Us) return such Goods to Our place of business at Your cost,

then We will, at Our option, repair, make good or replace the defective Goods, or refund the price of the defective Goods in full.

5.3     We will not be liable for the Goods’ failure to comply with the warranty in Clause 5.1 if:

  1. a) You make any further use of such Goods after giving a notice in accordance with Clause 5.2;
  2. b) the defect arises because You failed to follow Our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or system within which they are contained or (if there are none) good trade practice;
  3. c) the defect arises because the Goods have been mixed with other goods (and We have not approved this in writing);
  4. d) the defect arises as a result of Our following any drawing, design or specification of the Goods supplied by You;
  5. e) You alter or repair such Goods without the Our written consent;
  6. f)   the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
  7. g) the Goods differ from their description (or any specification of the Goods in the Order Acknowledgement) as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

5.4     Except as provided in this Clause 5 (and subject to Clause 13), We will have no liability to You in respect of the Goods’ failure to comply with the warranty set out in Clause 5.1.

5.5     The terms of these Conditions will apply to any repaired or replacement Goods supplied by Us under Clause 5.2.
 

6.         Title and Risk

6.1  The risk in the Goods will pass to You on completion of delivery. Title to the Goods will not pass to You until We have received payment in full (in cash or cleared funds) for the Goods; and any other goods that We have supplied to You in respect of which payment has become due, in which case title to the Goods will pass at the time of payment of all such sums.

6.2  Until title to the Goods has passed to You, You will:

  1. a) store the Goods separately from all other goods held by You so that they remain readily identifiable as Our property;
  2. b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
  3. c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Our behalf from the date of delivery;
  4. d) notify Us immediately if You become subject to any of the events listed in Clause 14.1(b) to Clause 14.1(l); and
  5. e) give Us such information relating to the Goods as We may require from time to time relating to the Goods and Your ongoing financial position.

6.3  Subject to Clause 6.4, You may resell or use the Goods in the ordinary course of Your business (but not otherwise) before We receive payment for the Goods. However, if You resell the Goods before that time:

  1. a) You do so as principal and not Our agent; and
  2. b) title to the Goods will pass from Us to You immediately before the time at which resale by You occurs.

6.4  At any time before title to the Goods passes to You, We may:

  1. a) by notice in writing, terminate Your right under Clause 6.3 to resell the Goods or use them in the ordinary course of Your business; and
  2. b) require You to deliver up all Goods in Your possession that have not been resold, or irrevocably incorporated into another product and if You fail to do so promptly, enter any premises of You or of any third party where the Goods are stored in order to recover them.

 

7.         Supply of Services

7.1     We will provide the Services to You in accordance with the Service Specification in all material respects.

7.2     We will use all reasonable endeavours to meet any performance dates for the Services specified in the Order Acknowledgement but any such dates will be estimates only and time will not be of the essence for the performance of the Services.

7.3     We will send You and email confirming the date(s) that have been booked for the supply of the Services to you. In the event You need to make a change to a booking We require a minimum of 5 full Working Days’ notice as set out in the email sent to You. We reserve the right to charge in full the amount of any Services that are cancelled and/or amended with less than 5 full working days’ notice.  

7.4     Where You are required to take certain actions before We can complete the Services, any performance dates will be dependent on You taking the necessary actions in a timely manner.

7.5     We will have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and We will notify You in any such event.

7.6     We warrant to You that the Services will be provided using reasonable care and skill.

7.7     We will use reasonable endeavours to observe all health and safety and security requirements that apply at Your premises and that have been communicated to Us under Clause 8.1(i), provided that We will not be liable under this Contract if, as a result of such observation, We are in breach of any of Our obligations under this Contract.

7.8     You acknowledge that if as part of the Services We make any recommendations as to goods and services that may benefit You, such recommendations will only be drawn from the goods and services offered by Us from time to time. You are solely responsible for carrying out any wider market assessment of the full range of goods and services that may be available.
 

8          Customer’s Obligations

8.1      You will:

  1. a) ensure that the terms of Your Order (and any written information given to Us prior to the issue of the Order Acknowledgement which We rely on in entering the Contract) are complete and accurate;
  2. b) co-operate with Us in all matters relating to supply of the Goods and/or the Services;
  3. c) provide Us, Our employees, agents, consultants and subcontractors, in a timely manner and at no charge, with access to Your premises, office accommodation and other facilities as reasonably required by Us to provide the Services and/or deliver the Goods;
  4. d) provide Us with such information, documents, items and materials in any form (whether owned by You or a third party) as We may reasonably require to supply the Goods and/or the Services, and ensure that such information is timely and accurate in all material respects;
  5. e) if reasonably necessary prepare Your premises for the supply of the Services and/or delivery of the Goods;
  6. f)   obtain and maintain all necessary licences, permissions and consents (including without limit the consent of the relevant third-party manufacturer to the installation of the Goods) which may be required for the Services before the date on which the Services are to start;
  7. g) keep and maintain all materials, equipment, documents and other property of Ours (Our Materials) at Your premises in safe custody at Your own risk, maintain the Our Materials in good condition until returned to Us, and not dispose of or use the Our Materials other than in accordance with Our written instructions or authorisation;
  8. h) ensure that all Your Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards or requirements;
  9. i)   inform Us of all health and safety and security requirements that apply at Your premises. If You wish to make a change to those requirements which will materially affect provision of the Services, You can only do so with Our consent.

8.2      If Our performance of any of Our obligations in respect of the supply of the Goods and/or the Services is prevented or delayed by any act or omission by You or failure by You to perform any relevant obligation (Customer Default):

  1. a) We will, without limiting Our other rights or remedies, have the right to suspend delivery of the Goods and/or performance of the Services until You remedy the Customer Default, and to rely on the Customer Default to relieve Us from the performance of any of Our obligations to the extent the Customer Default prevents or delays Our performance of any of Our obligations;
  2. b) We will not be liable for any costs or losses sustained or incurred by You arising directly or indirectly from Our failure or delay to perform any of Our obligations as set out in this Clause 8.2; and
  3. c) You will reimburse Us on written demand for any costs or losses sustained or incurred by Us arising directly or indirectly from the Customer Default.

 

9          Charge and Payment

9.1     The price for Goods will be the price set out in the Order Acknowledgement or, if no price is quoted, the price set out in Our published price list as at the date of delivery. The price of the Goods is exclusive of all costs and charges of packaging, installation, testing, insurance, and the cost of transport of the Goods (all of which will be paid by You when You pay for the Goods).

9.2     The charges for Services will be set out in the Order Acknowledgement.

Any additional Services will be charged on a time and materials basis:

  1. a) the charges will be calculated in accordance with Our standard daily fee rates, as set out in Our Fee Schedule;
  2. b) We will also be entitled to charge You for any expenses reasonably incurred by the individuals whom We engage in connection with the Services including, but not limited to, travelling expenses, hotel costs, congestion charges, road tolls, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Us for the performance of the Services, and for the cost of any materials.

We reserve the right to charge You for any bookings that are cancelled and/or amended with less than 5 full working days’ notice.

9.3     We reserve the right to increase the price of the Goods and Services, by giving notice to You at any time before delivery, to reflect any increase in the cost of the Goods or delivery of the Services or both to Us due to:

  1. a) any factor beyond Our control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
  2. b) any request by You to change the delivery date(s), quantities or types of Goods ordered, or the Services specification or the specification of the Goods set out in the Order Acknowledgement; or
  3. c) any delay caused by any instructions of Yours in respect of the Goods or failure of You to give Us adequate or accurate information or instructions in respect of the Goods.

9.4     Unless otherwise agreed in the Order Acknowledgement, We will invoice You on or at any time after delivery of the Goods and/or the provision of the Services. We reserve the right to invoice You on an interim or instalment basis.

9.5     Unless otherwise agreed in the Order Acknowledgement You will pay each invoice submitted by Us:

  1. a) within 30 days of the date of the invoice unless otherwise agreed in writing; and
  2. b) in full and in cleared funds to a bank account nominated in writing by Us, and time for payment will be of the essence of the Contract.

9.6     All amounts payable by You under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Us to You, You will, on receipt of a valid VAT invoice from Us, pay to Us such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.

9.7     Without limiting any other right or remedy of Ours, if You fail to make any payment due to Us under the Contract by the due date for payment (Due Date), We will have the right to charge interest on the overdue amount at the rate of 4% a year above the Bank of England’s base rate from time to time (but at 4% a year for any period when that base rate is below 0%) accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.

9.8     In addition to charging interest after the Due Date (as specified in Clause 9.7) We may suspend performance of Our obligations in the Contract without penalty until such time as all sums owed by You and outstanding after the Due Date have been paid.

9.9     All amounts due under the Contract will be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
 

10       Intellectual Property Rights

10.1  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 You) will be owned by Us.

10.2  We grant to You, or will procure the direct grant to You of, a fully paid-up, worldwide, non-exclusive, royalty free perpetual and irrevocable licence to copy and modify the Deliverables (excluding materials provided by You) for the purpose of receiving and using the Services and Deliverables in Your business.

10.3    You will not sub-license, assign or otherwise transfer the rights granted by Clause 10.2.

10.4    You grant Us a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by You to Us for the term of the Contract for the purposes of providing the Services to You.

10.5    You acknowledge that, in respect of any third-party Intellectual Property Rights in the Goods and Services, Your use of any such Intellectual Property Rights is conditional on Us obtaining a written licence from the relevant licensor on such terms as will entitle Us to license such rights to You.

10.6    All Our Materials are Our exclusive property.
 

11       Data Protection

11.1  The following definitions apply in this Clause 11:

Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR); the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.

11.2  Each party will comply with all applicable requirements of the Data Protection Legislation. This Clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

11.3  We will only use any personal information supplied by You as set out in Our privacy-policy.
 

12       Confidentiality

12.1  A party (Receiving Party) will keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party will restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and will ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This Clause 12 will survive termination of the Contract.

12.2    You will not analyse, attempt to modify or reverse-engineer, otherwise seek to determine the structure, composition and/or formula of any of the Goods.
 

13       Limitation of Liability

YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

13.1    The restrictions on liability in this Clause 13 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

13.2    Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.

13.3    Nothing in this Clause 13 shall limit Your payment obligations under this Contract.

13.4    Nothing in these Conditions shall limit or exclude liability of Ours which cannot be legally limited, including liability for:

  1. a) death or personal injury caused by negligence;
  2. b) fraud or fraudulent misrepresentation;
  3. c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
  4. d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); and
  5. e) breach of section 2 of the Consumer Protection Act 1987.

13.5 Subject to Clause 13.2 and Clause 13.4, the total liability of Us to You shall not exceed the contract price as detailed on the Order Acknowledgement PROVIDED THAT if (and only in the event that) this limit of liability is deemed unenforceable by a court of competent jurisdiction the total liability of Us to You shall instead be no greater than the limit of Our insurance.

13.6 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

13.7    This Clause 13.7 sets out specific heads of excluded loss:

  1. a) Subject to Clause 13.2, Clause 13.3 and Clause 13.4, Clause 13.7(b) excludes specified types of loss.
  2. b) The following types of loss are wholly excluded:
  3.   loss of profits;
  4.   loss of sales or business;

                           iii.   loss of agreements or contracts;

  1.   loss of anticipated savings;
  2.   loss of use or corruption of software, data or information;
  3.   loss of or damage to goodwill; and

                         vii.   indirect or consequential loss.

13.8    This Clause 13 shall survive termination of the Contract.
 

14       Termination

14.1    Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:

  1. a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within twenty (20) Business Days after receipt of notice in writing of the breach;
  2. b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
  3. c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
  4. d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
  5. e) the other party (being an individual) is the subject of a bankruptcy petition or order;
  6. f)   a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 10 Business Days;
  7. g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
  8. h) a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
  9. i)   a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
  10. j)   any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 14.1(b) to Clause 14.1(i) (inclusive);
  11. k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
  12. l)   the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation; or
  13. m) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

14.2    Without limiting Our other rights or remedies, We may terminate the Contract:

  1. a) by giving You sixty (60) Business Days written notice; or
  2. b) with immediate effect by giving written notice to You if You fail to pay    any amount due under this Contract on the due date for payment.

14.3 Without limiting Our other rights or remedies, We shall have the right to suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between You and Us if:

  1. a) You fail to pay any amount due under this Contract on the due date for payment; or
  2. b) You become subject to any of the events listed in Clause 14.1(b) to Clause 14.1(l), or We reasonably believe that You are about to become subject to any of them.

 

15       Consequences of Termination

On termination of the Contract for any reason:

  1. a) You shall immediately pay to Us all of Our outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, We shall submit an invoice, which shall be payable by You immediately on receipt;
  2. b) You will return all of Our Materials and any Deliverables and/or Goods which have not been fully paid for. If You fail to do so, then We may enter Your premises and take possession of them. Until they have been returned, You will be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
  3. c) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
  4. d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.

 

16       General

16.1    Force majeure:

  1. a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Us including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, epidemic, pandemic, 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 or default of Us or Our subcontractors.
  2. b) We shall not be liable to You as a result of any delay or failure to perform Our obligations under this Contract as a result of a Force Majeure Event.
  3. c) If the Force Majeure Event prevents Us from providing any of the Services and/or Goods for more than forty (40) Business Days, We shall, without limiting Our other rights or remedies, have the right to terminate this Contract immediately by giving written notice to You.

16.2    Assignment and subcontracting:

  1. a) We may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any Our rights under the Contract and may subcontract or delegate in any manner any or all of Our obligations under the Contract to any third party.
  2. b) You will not, without Our prior written consent, assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of Your rights or obligations under the Contract.

16.3    Notices:

  1. a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by email to the other party’s email address specified in the Order and/or the Order Acknowledgment.
  2. b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by email, on the next Business Day after transmission.
  3. c) This Clause 16.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.

16.4    Waiver and cumulative remedies: A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.

16.5    Severance: If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

16.6    No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of the other party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

16.7    Non-solicitation: The Customer shall not, without Our prior written consent, at any time from the date of this Contract to the expiry of 6 months after the termination or expiry of this Contract, solicit or entice away from Us or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Us in the provision of the Services. Any consent given by Us in accordance with this Clause 16.7 shall be subject to You paying to Us a sum equivalent to 20% of the then current annual remuneration of Our employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by You to that employee, consultant or subcontractor.

16.8    Third parties: 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.

16.9    Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by Us.

 

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