Terms of Business

  1. Scope
    1. The Factary shall provide to you (“the Client”) the services agreed in writing between The Factary and the Client set out in the Specification (“the Services”) in consideration of payment by the Client to The Factary of the fees and expenses set out in the Specification (“the Fees”).
    2. These Terms and the Specification shall be the Agreement and apply to the provision by The Factary of the Services.
    3. Agreement to the Specification indicates acceptance of these Terms and of any other express conditions contained in the Specification. In the event of any inconsistency between these Terms and any such express conditions then such express conditions shall prevail.
    4. This Agreement shall prevail over any terms and conditions of the Client. No conduct by The Factary shall be deemed to constitute acceptance of any terms put forward by the Client.
  2. Fees
    1. The Fees will be payable by the Client to The Factary in respect of the Services at the rates set out in the Specification.
    2. The Client shall pay the Fees (together with VAT or other applicable sales tax on such sums) to The Factary within 15 days of the date of invoice. The Factary may invoice one third of the fees immediately after the Specification has been agreed and thereafter may invoice each calendar month in respect of the Services carried out in that preceding month.
    3. Without prejudice to any other remedy which The Factary may have, in the event that any sums due under this Agreement are not received by The Factary in cleared funds by the due dates referred to in Clause 2.2 above The Factary may:
      1. charge interest on the overdue amount at the rate of 4% above the base rate of Lloyds TSB Plc for the time being from the due date until the overdue sums have been received by The Factary in cleared funds; and/or
      2. suspend the performance of the Services or obligations required under this Agreement until such time as payment of the overdue sums (together with any interest) have been received by The Factary in cleared funds.
    4. All payments made by the Client under this Agreement shall be made without set-off or counterclaim of any description.
  3. Information
    1. The Client shall:
      1. provide The Factary, with all such assistance as is reasonably necessary to enable The Factary to perform its obligations under this Agreement and make full disclosure to The Factary of all information and material relevant to the subject matter of the Services;
      2. ensure that any such information and material is true, accurate and complete in all respects, is free from any defamatory or unlawful content and that it does not infringe any rights (including, without limitation, any copyright, design rights, trade marks, registered designs, database rights, confidential information and all other intellectual property rights (“the Intellectual Property Rights”) of any third party;
      3. ensure that such information is provided within sufficient time to enable The Factary to provide the Services in accordance with this Agreement; and
      4. indemnify The Factary (and keep it indemnified) against all costs claims expenses and other liabilities arising out of or in connection with any breach by the Client of its obligations in this Clause.
    2. In relation to information supplied by the Client to be used in providing the Services (“the Information”) The Factary and its agents and employees shall store the Information securely, not use the Information for any purpose other than as required under this Agreement and destroy or return to the Client all Information and any copies within 60 days of payment of all the Fees due under the Agreement or termination of the Agreement, whichever is earlier.
    3. Where The Factary is required to produce any material (in written or electronic format) as part of the Services it shall ensure the content is true and accurate to the best of its knowledge.
    4. Each party acknowledges and accepts that it may receive information of a confidential nature relating to the other party, its business and clients (“Confidential Information”). Each party undertakes to the other that it will use the Confidential Information solely for the purposes envisaged by this Agreement and will not disclose the same unless the other party has consented in writing to such disclosure, such disclosure is required by law or such information is already in the public domain, other than as a result of a breach of any obligation of confidentiality.
    5. Without prejudice to Clause 3.4, the Factary may name the Client in lists of clients that it produces and discloses from time to time.
  4. Data Protection
    1. Clause 4.1 and 4.2 shall apply in so far as the Information referred to in Clause 3.2 contains Personal Data as defined by the Data Protection Act 1998 (as amended) (“the Act”). The Client warrants that:
      1. the Client’s Personal Data has been obtained and processed (in so far as the Client’s Personal Data has been processed) lawfully;
      2. the Services will be entirely consistent and appropriate to the specified and lawful purposes for which the Client has notified under the Act in respect of the Client’s Personal Data; and
      3. the Client’s Personal Data is accurate and the Client shall promptly provide The Factary with all amendments and corrections to the Client’s Personal Data sufficient to enable The Factary to keep the Client’s Personal Data at all times fully up to date.
    2. The Factary shall, in relation to the Information, at all times observe the restrictions of and comply with its obligations as a data processor under the Act.
    3. This Clause shall apply where The Factary provides details of individuals to the Client as part of the Services and those details contain Personal Data as defined by the Act. No specific consents or authorisations have been obtained from the individuals for the use of the details envisaged by the Client. On receipt of the details the Client will be a data controller for the purposes of the Act and must comply with the provisions of that legislation, including the eight data protection principles.
    4. The Client shall indemnify The Factary against any loss, damage liabilities or penalties which The Factary may sustain or incur as a result of any breach by the Client of the provisions of this Clause 4 or the Client’s other obligations as a data controller under the Act.
  5. Works produced when performing the Services
    1. It is acknowledged that when performing the Services The Factary may create, adapt or modify manuals, reports, studies, statistics, processes, designs, images or other materials (“the Works”).
    2. The Works and any Intellectual Property Rights arising in the Works shall be owned exclusively by The Factary.
    3. On payment of all the Fees (together with any interest due), The Factary shall grant to the Client a non-exclusive licence to the Intellectual Property Rights in the Works for the duration of such rights, to use adapt copy and produce the Works for the purposes set out in the Specification. The Client shall not sub-licence the licence granted to it by The Factary nor disclose the Intellectual Property Rights in the Works to any other person without the prior written consent of The Factary.
  6. Warranties and Liability
    1. Subject to Clauses 6.2 to 6.4 The Factary warrants that it will perform the Services with reasonable care and skill.
    2. The Factary will not be liable for any liability, loss or damage arising from the use by the Client of the material produced by it. Any decision made by the Client as a result of the material produced is entirely at the Client’s risk.
    3. The entire liability of The Factary under or in connection with this Agreement shall not exceed the Fees payable by the Client under this Agreement.
    4. Nothing in this Agreement shall have the effect of limiting or excluding the liability of The Factary for death or personal injury caused by the negligence of The Factary, for fraud or otherwise as prohibited by law.
  7. Termination
    1. Either party may terminate this Agreement at any time by giving not less than 30 days notice in writing to the other.
    2. Either party may terminate this Agreement immediately by giving written notice to the other party if:
      1. that party makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company or limited liability partnership) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction), or an encumbrancer takes possession, or a receiver is appointed, over any of its property or assets or anything analogous to any of the foregoing occurs to that party under the law of any jurisdiction; or
      2. that party commits any material breach of this Agreement and (if capable of remedy) fails to remedy the same within 30 days after being given written notice to do so.
    3. In the event that the Agreement is terminated in accordance with this Clause 7:
      1. notwithstanding any provision in the Specification to the contrary, The Factary shall be entitled to invoice for all the Fees attributable to the Services and expenses incurred by The Factary to the date of termination at the rates set out in the Specification (insofar as such sums have not previously been invoiced) and all invoices shall become immediately due and payable;
      2. the provisions of Clause 2.3.1 shall apply to all sums due in accordance with Clause 7.3.1; and
      3. within 30 days following the receipt in cleared funds of the sums referred to in this Clause 7.3 The Factary shall (at the cost of the Client) deliver any Works to the Client that are completed.
  8. Notices
    1. Any notice or consent required or permitted under this Agreement shall be in writing and shall be sent by first class post, hand delivery, fax or email. Unless otherwise notified in writing for the purpose of this clause the postal and email addresses and fax numbers of the parties are as set out on the up to date headed stationery used by each party.
  9. General
    1. This Agreement constitutes the entire agreement and understanding between the parties with respect to its subject matter and the terms of this Agreement shall supersede any previous agreements. No variation to this Agreement shall be effective unless made in writing and signed by or on behalf of the parties.
    2. The Client shall not be entitled to assign or subcontract or otherwise dispose of its rights or obligations under this Agreement without the prior written consent of The Factary. The Factary shall be entitled to assign or subcontract or otherwise dispose of its rights or obligations under this Agreement without the prior written consent of the Client.
    3. This Agreement shall be governed by and construed in accordance with English Law and any dispute arising under or in connection with this Agreement shall be subject to the exclusive jurisdiction of the English courts, to which each of the parties irrevocably submits.