1. Definitions and Interpretation
In these Conditions the following words and expressions have the following meanings unless inconsistent with the Contract:
Additional Charges means those charges payable to the Member for any agreed Additional Services;
Additional Services means those services requested by a Member, which are not Member Services, as agreed to be provided by NWG in accordance with Condition 4.6 and subject to the terms of an Order Confirmation;
Authorised Users means those employees of the Member who are authorised to use the Services;
Business Day means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
Conditions means these terms and conditions amended from time to time in accordance with Condition 23;
Confidential Information without limitation, business, commercial, economic, financial, operational, technical, administrative, marketing, planning and staff information and data relating to the Supplying Party or its interests disclosed including any Intellectual Property Rights to the Receiving Party whether before, during or after the provision of the Deliverables, whether in written, oral, pictorial or any other form, and all information, data, know-how, trade secrets, formulae, processes, designs, photographs, drawings, specifications, software programs, samples or other material attributable to or deriving its existence from the provision of the Deliverables. “Supplying Party” and “Receiving Party” shall have the meanings ascribed in Condition 11.1;
Contract means the Contract between NWG and the Member for the supply of Services formed in accordance with Condition 2.2;
Contract Details means the specific details of the Contract confirmed by NWG in writing to the Member;
Effective Date means the date specified in the Contract Details;
Initial Membership Term means one year from and including the Effective Date;
Intellectual Property Rights means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks 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, 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;
Member means the member wishing to purchase access to the Member Services, details of which are set out in the Contract Details;
Member Fees means the membership fees payable by the Member to NWG for the use of the Member Services by the Authorised Users as set out in the Contract Details and as may be reviewed from time to time by NWG in accordance with Condition 7.3;
Member Services means the subscription services, details of which as at the Effective Date are set out at [insert link to Services Specification] and which may be varied by NWG from time to time by written notice to the Member, provided by NWG to the Member under these Conditions via the Website or any other website notified to the Member by NWG from time to time;
Membership Term means the period during which a Contract is in force and effect which shall include the Initial Membership Term and any subsequent period that the Parties agree to;
Normal Business Hours means 9.00 am to 5.00 pm on a Business Day;
NWG means NWG Network, a charitable company incorporated in England and Wales with company number 6557851 whose registered office is at Suite 2, Innovation House, East Service Road, Raynesway, Derby, DE21 7BF;
Order Confirmation means the confirmation of order issued by NWG in accordance with Condition 4.5 in relation to any Additional Services, in the form set out in the Schedule to the Conditions;
Principal Contact means the contact named as such in the Contract Details or Order Confirmation as appropriate;
Proposal means any proposal, estimate, scope of works or quotation provided to a Member in relation to a request for any Additional Services;
Services means the Member Services and the Additional Services;
Unpaid Amount means any sum due to NWG under the Contract which has not been paid by the Member to NWG by the Due Date;
Virus means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device, prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; and
Website means the website at www.nwgnetwork.org where each Authorised User can access the Services.
1.2 References to any statute or statutory provision include, unless the context otherwise requires, a reference to the statute or statutory provision as modified or re-enacted and in force from time to time, and any subordinate legislation made from time to time under the relevant statute or statutory provision.
1.3 References to “persons” include natural persons, firms, partnerships, companies, corporations, associations and organisations, (in each case whether or not having separate legal personality).
1.4 Use of any gender includes the other genders.
1.5 Words in the singular include the plural and words in the plural include the singular.
1.6 Any reference to “writing” or any cognate expression includes communications by post and email but excludes facsimile and text messages.
1.7 The headings to Conditions do not affect the interpretation of these Conditions.
1.8 Any phrase introduced by the term “include”, “including”, “in particular” or any similar expression will be construed as illustrative and will not limit the sense of the words preceding that term.
2. Formation of Contract
2.1 These Conditions shall apply to the sale and supply by NWG of Services to the Member and these Conditions shall govern the Contract to the exclusion of any other terms and conditions introduced or submitted by the Member.
2.2 These Conditions shall become binding on the Member when the Contract Details are signed by the Member or, if they are not signed, when NWG:
- Confirms the Effective Date in writing; or
- Confirms the Member’s access to any of the Services;
whichever is the earlier, at which point a ‘Contract’ shall come into existence between NWG and the Member.
3. Member Subscriptions
3.1 Subject to:
- The Member paying the Member Fees;
- The restrictions set out in this Condition 3; and
- The other terms and conditions of this Contract,
NWG hereby grants to the Member a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Membership Term.
3.2 In relation to the Authorised Users, the Member undertakes that:
- Each Authorised User shall keep a secure password for the use of the Services to enable access to the Website and that each Authorised User shall keep their password confidential;
- It shall maintain a written, up to date list of current Authorised Users and provide such list to NWG within 5 Business Days of NWG’s written request at any time or times.
3.3 The Member shall not, and shall procure that the Authorised Users do not, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence, is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability or in a manner that is otherwise illegal or causes damage or injury to any person or property. NWG reserves the right, without liability or prejudice to its other rights to the Member, to disable the Member’s access to the Services, or any part thereof in the event of a breach of the provisions of this Condition 3.3.
3.4 The Member shall prevent any unauthorised access to, or use of, the Services which shall include access to or use of the Website, and, in the event of any such unauthorised access or use, shall notify NWG promptly.
3.5 The rights provided under this Condition 3 are granted to the Member only, and shall not be considered granted to any subsidiary or holding company of the Member.
4.1 NWG shall subject to Condition 3.1, during the Membership Term, use reasonable endeavours to provide the Services to the Member on and subject to these Conditions.
4.2 Where the Member wishes to purchase any Additional Services from NWG it shall notify NWG either in writing by way of email or via the Website or by telephone, setting out all information as is reasonably required by NWG to enable it to consider a Proposal.
4.3 As soon as reasonably practicable, NWG shall provide a Proposal to the Member in relation to its request for Additional Services or, alternatively, notify the Member that it is unable to provide such Additional Services at that time.
4.4 Where a Proposal is submitted in accordance with Condition 4.3 above, it shall remain valid for the period set out in the relevant Proposal.
4.5 If a Member wishes to instruct NWG to perform Additional Services in accordance with a Proposal submitted in accordance with Condition 4.3 above, it shall notify NWG in writing and in response NWG shall issue an Order Confirmation to the Member.
4.6 Each Order Confirmation shall:
- Be given in writing;
- Specify the nature of the Additional Services to be performed; and
- Specify the timetable for performance of the Additional Services and any key milestones.
4.7 In the event that the Member wishes to cancel an Order Confirmation, it may only do so with NWG’s written consent and on terms that the Member shall indemnify NWG in full against all loss, costs (including the cost of labour and materials), damages, charges and expenses incurred by NWG as a result of the cancellation.
5. NWG’s obligations
5.1 NWG undertakes that it will provide the Services using reasonable skill and care, in a timely and efficient manner.
5.2 The undertaking at Condition 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to NWG’s instructions, or modification or alteration of the Services by any party other than NWG or NWG’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly. Such correction or substitution constitutes the Member’s sole and exclusive remedy for any breach of the undertaking set out in Condition 5.1. Notwithstanding the foregoing, NWG:
- Does not warrant that the Member’s use of the Services will be uninterrupted or error-free or that the Services and/or the information obtained by the Member through the Services will meet the Member’s requirements;
- Does not warrant that any action taken by the Member as a result of the Services and/or the information obtained by the Member through the Services will deliver any specific or beneficial result; and
- Is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Member acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.3 This Contract shall not prevent NWG from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Contract.
6. Member’s obligations
6.1 The Member shall:
- Provide NWG with:
(i) all necessary co-operation in relation to this Contract; and
(ii) all necessary access to such information as may be required by NWG;
- Comply with all applicable laws and regulations with respect to its activities under this Contract;
- Carry out all other Member responsibilities set out in this Contract in a timely and efficient manner. NWG shall not be liable for any delay in performing or failure to perform the Services as a result of the Member failing to perform its obligations under this Contract;
- Ensure that the Authorised Users use the Services and in particular the Website in accordance with the terms and conditions of this Contract and shall be responsible for any Authorised User’s breach of this Contract; and
- Obtain and maintain all necessary licences, consents, and permissions necessary for NWG, and agents to perform their obligations under this Contract, including the Services.
7. Member Fees
7.1 The Member Fees are set out in the Contract Details.
7.2 The Member Fees are inclusive of labour, materials, insurance and delivery unless stated to the contrary in the Contract Details of as set out in the Member Services description.
7.3 NWG shall be entitled to review and increase the Member Fees annually to take effect at the end of the Initial Membership Term and each 12 month period thereafter upon 90 days prior notice to the Member and the Member Fees shall be deemed to have been amended accordingly.
7.4 Where set out in the Contract Details, the Member shall reimburse all reasonable expenses properly and necessarily incurred by NWG in the course of the Contract, subject to product receipts or other appropriate evidence of payment.
7.5 Unless otherwise stated in writing, the Member Fees are quoted exclusive of VAT or any other sales tax which shall be charged at the rate in force at the time of despatch.
7.6 For the avoidance of doubt, Member Fees are non-cancellable and non-refundable.
8. Additional Charges
8.1 Any Additional Charges are as set out in the Order Confirmation.
8.2 Additional Charges are inclusive of labour, materials, insurance and delivery unless stated to the contrary in the Order Confirmation.
8.3 NWG reserves the right to increase any Additional Charges by written notice to take account of any additional work undertaken over and above that which would have been otherwise required, (including any expenses or financial penalties incurred by NWG) as a result of any instructions supplied by the Member being incomplete, incorrect, inaccurate, illegible, out of sequence or provided to NWG too late to enable it to meet a deadline.
8.4 Where set out in the Order Confirmation, the Member shall reimburse all reasonable expenses properly and necessarily incurred by NWG in the course of performing the Additional Services, subject to product receipts or other appropriate evidence of payment.
8.5 Unless otherwise stated in writing, the Additional Charges are quoted exclusive of VAT or any other sales tax which shall be charged at the rate in force at the time of despatch.
9.1 The Member shall pay the Member Fees to NWG in accordance with this Condition 9 which unless inconsistent with any specific payment terms set out in the Contract Details, any Order Confirmation or as otherwise agreed in writing between the Parties.
9.2 NWG will issue an invoice to the Member for the Member Fees:
(a) on or after the Effective Date in respect of the Member’s access to the Services for the Initial Membership Term; and
(b) not more than 30 days before, on or at any time after expiration of the Initial Membership Term or any subsequent anniversary of its expiration.
9.3 NWG shall be entitled to invoice the Member for any Additional Charges in accordance with the payment terms set out in the Contract details or Order Confirmation as appropriate.
9.4 The Member shall pay each invoice in full and in cleared funds within 30 days of the date of the invoice (“Due Date”).
9.5 If NWG has not received payment by the Due Date, and without prejudice to any other rights and remedies NWG may have:
(a) NWG may, without liability to the Member, disable the Member’s account and access to all or part of the Services including but not limited to the Website and NWG shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) the Member shall indemnify NWG for all reasonable costs that are reasonably incurred by NWG (either directly or indirectly or by a third party) in seeking or securing payment of any Unpaid Amount or otherwise pursuing any claim for damages for breach of this Contract. This indemnity shall apply whether or not the Member has been negligent or at fault. For the avoidance of doubt, the limitations set out in Condition 13, do not apply to the indemnity in this Condition 9.5(b).
9.6 Unless otherwise agreed in writing by NWG all queries from the Member regarding any invoice must be received prior to the Due Date for that invoice.
10. Intellectual Property Rights
10.1 The Member acknowledges that NWG is the owner or the licensee of all Intellectual Property Rights in the Services. Under no circumstances shall any of the Intellectual Property Rights transfer to the Member other than as expressly stated within these Conditions and/or the Contract Details.
10.2 NWG grants to the Member a non-exclusive licence (without the right to sub-licence) to use any Intellectual Property Rights in the Services for the purpose of making reasonable use of the Services.
10.3 The Member shall indemnify and hold NWG harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by; NWG as a result of or in connection with any claim made against NWG in respect of any liability, loss, damage, injury, cost or expense sustained by NWG, or NWG’s employees or agents or by any third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the use of the Services as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of this Contract by the Member.
11.1 Each Party (‘Receiving Party’) shall keep the Confidential Information of the other Party (‘Supplying Party’) confidential and secret, the Receiving Party shall only use the Confidential Information of the Supplying Party as necessary in relation to the supply of the Services (in the case of NWG) or as necessary for the purpose of making reasonable use of the Services (in the case of the Member) and for performing the Receiving Party’s obligations under the Contract. The Receiving Party shall inform its officers, employees and agents of the Receiving Party’s obligations under the provisions of this Condition 11, and ensure that they meet such obligations.
11.2 The obligations of Condition 11.1 shall not apply to any information which:
(a) was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Supplying Party;
(b) is, or becomes, publicly available through no fault of the Receiving Party;
(c) is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
(d) was developed by the Receiving Party (or on its behalf) without direct access to, or use or knowledge of the Confidential Information supplied by the Supplying Party; or
(e) is required to be disclosed by order of a court of competent jurisdiction.
11.3 This Condition 11 shall survive termination of the Contract.
12. Data Protection
12.1 In this Condition 12, “Personal Data” has the meaning given in the Data Protection Act 1998 as amended from time to time.
12.2 NWG warrants that, to the extent it processes any Personal Data on behalf of the Member:
12.2.1 it shall act only on instructions from the Member; and
12.2.2 it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
13. Limitation of liability
13.1 Neither Party excludes or limits its liability to the other Party for:
(a) fraud or fraudulent misrepresentation; or
(b) death or personal injury caused by negligence.
13.2 Subject to Condition 13.1 above, NWG’s liability in connection with the sale and supply of Services shall be as follows:
13.2.1 in respect of any loss of profits, loss of business, loss of goodwill, loss of anticipated savings or loss of use, NWG’s liability shall be nil;
13.2.2 for any type of consequential, special or indirect loss or damage, NWG’s liability shall be nil; and
13.2.3 in respect of all other direct loss (whether in contract, tort or otherwise) NWG’s total liability under the Contract shall not exceed £5,000 in aggregate other than where such liability is expressly covered by NWG’s insurance in which case the limits set out therein shall apply.
14.1 Without prejudice to any other remedies or rights whether under the Contract or otherwise, NWG may terminate the Contract at any time by written notice to the Member and the notice taking effect as specified in the notice if:
14.1.1 the Member commits a material or persistent breach of any of these Conditions, and (if such a breach is remediable), fails to remedy that breach within 30 days, or such other time period deemed appropriate by NWG at the time, of being notified in writing;
14.1.2 the Member fails to pay any sum due by the Due Date in full cleared funds in accordance with Condition 9 within 30 days, or such other time period deemed appropriate by NWG at the time, of being notified in writing;
14.1.3 the Member suspends, or threatens to suspend, payment of its debts or makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction);
14.1.4 a creditor or encumbrancer 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 any property or assets of the Member;
14.1.5 the Member suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
14.1.6 NWG reasonably apprehends that any of the events mentioned above is about to occur and notifies the Member accordingly.
14.2 For the purposes of Condition 14.1 a breach shall be considered capable of remedy if the Member can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).
14.3 Upon termination of the Contract for any reason:
14.3.1 the Member shall immediately pay to NWG all outstanding invoices, and in respect of any part of the Member Fees and Additional Charges or other sums payable by the Member but for which no invoice has been submitted, NWG may submit an invoice which shall be payable immediately on receipt;
14.3.2 each Party shall return, delete or destroy all Confidential Information and all other information which has been provided to it by the other Party belonging to that other Party in whatever medium in accordance with the instructions of that other Party;
14.3.3 any licence granted by these Conditions shall terminate, in particular those granted under Condition 10; and
14.3.4 the accrued rights and remedies of the Parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
15. Force majeure
15.1 NWG shall have no liability to the Member or be deemed to be in breach of this Contract if it is prevented from or delayed in performing its obligations in relation to the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control.
16. Dispute resolution
16.1 All disputes or claims arising out of or in connection with the Contract (“Disputes”) shall be resolved in accordance with this Condition 16.
16.2 The Parties shall attempt, in good faith, to resolve any Dispute promptly by negotiation which shall be conducted as follows:
(a) if a Dispute arises in the opinion of either Party, the Party in question may give written notice to the other Party that the Dispute has arisen;
(b) the Dispute shall be referred, by the referring Party, first to NWG’s Network Manager and the Principal Contact for the Member for resolution;
(c) if the Dispute cannot be resolved by the individuals identified in Condition 16.2(b) above within 20 Business Days after the Dispute has been referred to them, either Party may refer the Dispute to NWG’s Chief Executive and the Member’s Chief Executive or person of similar standing, for resolution.
16.3 If the individuals identified in Condition 16.2(c) are unable, or fail, to resolve the Dispute within 14 days following referral of the Dispute to them, the Dispute shall be referred for resolution in accordance with Condition 26.
17.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given.
17.2 Unless specifically provided otherwise, rights arising under this Contract are cumulative and do not exclude rights provided by law.
18. Rights and remedies
18.1 All rights and remedies available to either of the Parties under the terms of the Contract or under the general law are to be cumulative, and no exercise by either of the Parties of any such right or remedy is to restrict or prejudice the exercise of any other right or remedy granted by this Contract or otherwise available to that Party.
19.1 If any provision (or part of a provision) of these Conditions is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
19.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
20. Entire agreement
20.1 The Contract and any documents referred to in it constitute the entire agreement between the Parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
20.2 Each Party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
20.3 Each Party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
20.4 Nothing in this Condition 20 shall limit or exclude any liability for fraud.
21.1 NWG may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract. The Member shall not, without NWG’s prior written consent, assign, transfer, charge, sub-contract or deal in any manner with all or any of its rights or obligations under the Contract.
22. No partnership or agency
22.1 Nothing in these Conditions is intended to, or shall be deemed to, establish any partnership or joint venture between either of the Parties, constitute either Party the agent of the other, nor authorise a Party to make or enter into any commitments for or on behalf of the other Party.
23.1 No variation of these Conditions shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
24. Third party rights
24.1 These Conditions and any Contract formed subject to them does not confer any rights on any person or party (other than the Parties to this Contract and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
25.1 Any notice required to be given under these Conditions shall be in writing and shall be delivered by hand, sent by pre-paid first-class post or recorded delivery post to the other Party at its address set out in the Contract Details, or such other address as may have been notified by that Party for such purposes, or sent by email. In the case of emails served by NWG, any email shall be sent to the Principal Contact and in the case of an email served by the Member any emails shall be sent to the Network Manager from time to time.
25.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in Normal Business Hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of receipt by the recipient’s server.
26. Governing law and Jurisdiction
26.1 The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
The Parties irrevocably agree that the courts of England have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).