These Terms and Conditions (“Conditions”) constitute the only basis on which Track Record Global Limited agrees to supply the Services.
1.A In these Conditions the following terms have the following meanings:
“Associated Companies” means in relation to a party, the holding party or any majority owned subsidiary of such party or holding company;
“Agreement” means these Conditions, the Schedule and the associated Track Record Global Documentation that is expressly incorporated by agreement between the parties;
“Charges” means the price for the Services or any other applicable charges annual or otherwise as specified in the Track Record Global quotation or other Track Record Global Documentation;
“Commencement Date” means the date on which the Services start to be performed;
“Customer” means the company and its Associated Companies or other legal entity accepting any Track Record Global Service;
“Initial Term” means the period of 24 months from the Commencement Date;
“Track Record Global” or “TRG” means Track Record Global Limited of Unit 6 Cornbury Park, Charlbury, Oxfordshire, OX7 3EW, United Kingdom;
“Trading Partner” means the third party business with whom the Customer is trading and who has requested use of the Service via sign up on the Track Record online portal;
“Services” means the Track Record Global service Track Record shall deliver to the Customer and or Trading Partner which is identified in detail in the relevant Service Description; and
“Service Description” means the description of services as set out in the Schedule or any other services each as defined in the relevant Service Description.
2.A Notwithstanding a duly executed agreement to the contrary, the parties contract on these Conditions which shall prevail over any inconsistent terms which the Customer may seek to introduce on any purchase order or any other communication for the supply/purchase of Services. Such inconsistent terms shall have no effect on any supplies made by TRG to the Customer.
2.B TRG shall supply the Services and Customer shall pay the Charges for Services as set out in the Agreement.
2.C If there is any conflict between these Conditions and the terms of the Service Description, the latter shall prevail.
3.A The Services shall be provided in accordance with the Service Description..
3.B TRG shall own and be fully entitled to use in any way it deems fit any intellectual property skills, techniques, materials, concepts or know-how acquired, developed or used in the course of performing the Services and any improvements made or developed during the course of the Services. Nothing herein shall be construed or give effect to any transfer of right, title or interest in any of TRG’s intellectual property.
3.C TRG shall keep the Customer indemnified against all liabilities, costs, expenses, damages and losses and all other reasonable professional costs and expenses suffered or incurred by the Customer as a result of or in connection with any claim brought against the Customer for actual infringement of a third party’s intellectual property rights arising out of or in connection with the receipt or use of the Service to the extent that the claim is attributable to the acts or omissions of TRG.
3.D TRG warrants and undertakes to the Customer that:
(a) Subject to Clause 4.1, the Services will be provided in a timely and professional manner;
(b) the Services will conform to the standards generally observed in the industry for similar services and will be provided with reasonable skill and care;
(c) it will co-operate with the Customer in all matters relating to the Services, and comply with all reasonable instructions of the Customer;
(d) it will use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that TRG’s obligations are fulfilled in accordance with this Agreement;
(e) it will ensure that the Services will conform with the descriptions and specifications set out in Service Description; and
(f) it will obtain and at all times maintain all necessary licences and consents, and comply with all applicable laws and regulations.
3.E The Customer shall indemnify and keep indemnified TRG in respect of any losses, costs, damages, claims and/or expenses incurred by TRG due to any claims by a third party arising out of any malicious or negligent use, access of the Services and/or use of any materials supplied to TRG by the Customer. The indemnity in this clause 3.4 shall survive the termination or expiry of this Agreement.
3.F TRG employs up to date electronic and physical security to try to ensure that Trading Partner and Customer data is kept secure in accordance with the current legislation. Whilst TRG uses commercially reasonable efforts to check for the most commonly found viruses, worms, and or trojan horses, or other newly created viruses, TRG is not in a position to confirm that the data and any links to it will be free from such viruses and cannot accept any liability in this regard due to the fast changing nature of such threats. In addition, TRG therefore recommends that the Trading Partner and Customer carry out its own virus checks, particularly before opening any link or using the website and its Service.
4 Customer Obligations
4.A Customer agrees to perform in a timely and professional manner all Customer obligations set out in this Agreement that are required for the provision of Services including promptly furnishing the information requested of the Customer in the TRG documentation and Services web site and ensure it employees or agents co-operate with TRG.
5 Charges and Payment
5.A Unless agreed otherwise in writing all Charges shall be paid by Customer: (a) as invoiced by TRG and are payable immediately on receipt of the invoice in Sterling, USA Dollars or Euros without deduction, set off or retention; and (b) in advance of the delivery of the Services. All payments to be made to the TRG bank account as notified to the Customer from time to time.
5.B TRG shall be entitled at any time and from time to time (subject as mentioned below) to increase/decrease the Charges by giving to the Customer not less than 30 days’ prior written notice (effective on the next anniversary of the Commencement Date).
5.C All Charges and prices stated are exclusive of value added tax, or any other similar tax.
5.D Failure of Customer to pay the Charges or any other sum due under this Agreement shall entitle TRG without prejudice to any other rights and remedies to suspend the Service.
5.E TRG will refund Customers unused charges on a Customer’s request on or around the end of June each year.
5.F If the Customer fails to make any payment due under the Agreement by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 3% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. This clause shall not apply to payments that the Customer disputes in good faith.
6 Term and Termination
6.A Notwithstanding earlier termination under clause 6.2, this Agreement shall commence on the Commencement Date and will continue in full force and effect for the Initial Term and thereafter for successive 24 month periods until a party gives not less than 60 days’ written notice to terminate such notice to expire at the end of the Initial Term or any renewal thereof.
6.B Either party may, by written notice terminate this Agreement immediately without prejudice to any other rights or remedies it may otherwise have if:
(a) the other party is guilty of any material breach, non-observance or non-performance of any of its obligations and does not remedy the same within 14 days of notice of such breach being given by the non-defaulting party;
(b) the other party becomes insolvent or makes any special arrangement or any special assignment for the benefit of its creditors, or is the subject of a voluntary or involuntary filing under the bankruptcy laws of any jurisdiction;
(c) the other party is adjudicated bankrupt; or
(d) a receiver is appointed for the other party’s business.
6.C The Customer may terminate this Agreement by written notice if TRG breaches the service level agreement in the Schedule, two or more times in any 3 month period.
6.D The effective date of termination shall be the date of receipt of such notice.
6.E On termination of the Contract for any reason, TRG shall immediately deliver to the Customer all documents and Data, and return all Customer materials. Until they have been returned or delivered, TRG shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Agreement.
7 Limitation of liability
7.A Subject to clauses 7.3 and 3.6, in no event shall either party be liable in contract, tort (including negligence), breach of statutory duty, or otherwise howsoever for:
any loss of profit; (b) loss of business; (c) loss of goodwill; (d) loss of contracts; (e) loss of revenues; (f) or loss of anticipated savings; or (g) any increased costs or expenses; or (h) loss of, damage to or corruption of data; or (j) any special, indirect or consequential loss or damage of any nature whatsoever, whatever the cause thereof arising out of or in connection with this Agreement even if the other has been advised of the possibility of such damages.
7.B Subject to clauses 3.6, 7.1 and 7.3 and without prejudice to the Customer’s obligations to pay any Charges hereunder, the parties’ maximum liability under this Agreement is limited in respect of each event or series of connected events, to 125% of the Charges in any 12 month period.
7.C Nothing in the Agreement excludes or limits the liability of either party for death or personal injury caused by its negligence, fraud or any other matter which cannot by law be limited or excluded or prohibited by UK statute.
7.D TRG’s sole obligations and liabilities in respect of the provision of the Service are as stated in these Conditions and all other representations (innocent or negligent), conditions, warranties and terms express or implied whether by statute, law or otherwise are hereby excluded to the fullest extent permitted by law.
8.A Each party shall treat as confidential such information obtained from the other pursuant to this Agreement and shall not divulge such information to any person (except to the Customer’s Trading Partner) without the other party’s prior written consent provided that this clause shall not extend to information which was rightfully in the possession of such party. Each party shall ensure that its employees are aware of and comply with the provisions of this clause. TRG shall retain the customer’s data for 10 years following termination of this agreement.
8.B Neither party shall assign the benefit of this Agreement in whole or in part without the prior written consent of the other.
8.C Neither party shall be responsible for any failure to perform these obligations for reasons beyond its reasonable control.
8.D Except as set out in this Agreement, no variation of the Agreement shall be effective unless it is agreed in writing and signed by the parties.
8.E Save as expressly stated herein or the enforcement of any intellectual property rights the parties hereby expressly exclude the provisions of the Contracts (Rights of Third Parties) Act 1999.
8.F This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby agree to submit to the exclusive jurisdiction of the English Courts.
8.G No failure or delay of either party in exercising any right, power, or privilege under these Conditions (and no course of dealing between the Parties) shall operate as a waiver thereof.
8.H If any provision of these Conditions or any part of such provision is held invalid or unenforceable, the remainder of the provisions contained herein will not be affected thereby and each remaining provision or part thereof will be valid and enforceable to the full extent permitted by law.
8.I This Agreement is not intended to create a joint venture or partnership between the parties and neither party is authorised to act as the agent of the other.
8.J This Agreement represents the entire agreement between the parties to exclusion of all other communications and supersedes all other Agreements relating to the subject matter herein.
8.K Any notice or other communication given to a party under or in connection with the Agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
8.L A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 8.10; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second business day after posting; if delivered by commercial courier, on the date and at the time that the couriers delivery receipt is signed; or, if sent by fax or e-mail, one business day after transmission.
9 Data Protection
9.A Customer irrevocably consents that information regarding any Trading Partner provided to or otherwise obtained by TRG through this Agreement (“Data”) may be processed by TRG, its sub-contractors and Associated Companies both within and outside Europe. Where Data is obtained in connection with processing Trading Partner’s information, including the right of TRG, its Sub-contractors and Associated Companies to use Data to market more effectively, TRG and its Associated Companies’ products and services, to Customer and /or the Trading Partner in the future.
9.B TRG shall at all times seek the Customer’s and/or Trading Partner’s written consent to use the Customer/Trading Partner name and experience of the Services in any advertising or case studies that TRG wishes to promote via a press release.
9.C Customer shall employ reasonable endeavours to obtain informed and express consent during each 12 months for the processing of Data as set forth herein from its Trading Partner, and shall immediately give TRG notice where it has not obtained such consent or where such consent is revoked.