»Terms and Conditions«
§ 1 GENERAL
1.1 In these general terms and conditions of supply (“General Conditions”):
a) “Contract” means any or (as the case may be) each contract that we enter into with you in respect of the Product and Service Specification (however concluded), and these General Conditions shall form a part of such contract;
(b) “COCKPIT” means a Software as a Service (SaaS) solution (online platform) which digitally maps the work processes of Investor Relations Managers;
(c) “Due Date” means 5.00 p.m. on the day that is 30 days following the date of delivery of our invoice;
(d) “Licenced Platform” means the medium which displays the contents we provide for the client (e.g. corporate website);
(e) “Product and Service Specification” means the product and service specification outlining the scope of the rights of the parties and their obligations to be performed under the Contract;
(f) “RSA SecurID® Token” means the hardware that ensures a secure two-factor authentication to access the COCKPIT;
(g) “Transmitted Information” means any content supplied by us in accordance with the Product and Service Specification;
(h) “we”, “us” or “our” means EQS Group Limited, a company incorporated under the laws of England and Wales with registered number 08346882 and with its registered office located at 32 Cornhill, London EC3V 3SG, together with any affiliated group company of EQS Group Limited;
(i) “you” or “your” means the person, firm or company purchasing products and services from us.
1.2 The Contract applies to the exclusion of any and all terms and/or conditions that may be submitted by or for you under any purchase order, specification or any other document (“Customer Conditions”), which shall, despite any contrary provisions of any Customer Conditions, be void and of no effect and shall not form any part of the Contract even if any such document:
(a) is referred to in the Contract; or
(b) formed any part of pre-contractual negotiations or correspondence between the parties, and you irrevocably waive any right that you might otherwise have to rely on any Customer Conditions.
1.3 Notwithstanding clause 1.2, we may from time to time vary these General Conditions in such manner as we determine.
1.4 Each Contract entered into between the parties in respect of the relevant Product and Service Specification shall constitute a separate contract that is subject to these General Conditions and you shall ensure that the Product and Service Specification under the Contract is complete and accurate.
1.5 In the event that there is a conflict between the terms of any Contract and these General Conditions, the terms of the Contract shall prevail.
1.6 Notwithstanding any provisions in the Contract to the contrary, we shall be entitled to revise and/or modify the Product and Service Specification under the Contract provided that, at our discretion:
(a) such revision(s) and/or modification(s) are just and reasonable for you; and
(b) the material terms of the Contract are not cancelled and made void.
1.7 Further to clause 1.6 we shall notify you in writing of any proposed revision(s) and/or amendment(s) to the Product and Service Specification under the Contract.
1.8 If at any time any provision of the Contract is, becomes or is found to be illegal, invalid or unenforceable (in whole or in part), the legality, validity and enforceability of the remainder of the Contract shall not be affected.
1.9 We shall not be bound by any clerical or accidental errors in documents issued by us.
§ 2 TRANSMITTED INFORMATION
2.1 You shall be solely responsible for the content and form of the Transmitted Information and you shall be responsible for ensuring that the Transmitted Information is not unlawful and that it complies with all applicable laws and stock exchange regulations, and market customs and practices.
2.2 You shall defend, indemnify and hold us harmless from any and all claims, damage and expenses which may incur from a failure to comply with your obligations under clause 2.1. The same applies in case of claims from third parties as a result of your content, which can be accessed via a link on the Licenced Platform. The indemnity obligations include, without any limitation, the expenses for reasonable and adequate legal fees.
2.3 You shall supply in a reasonable timeframe upon our request all documents and data required by us for fulfilling our obligations in respect of delivering and/or performing the Product and Service Specification under the Contract.
§ 3 ACCESS PROTECTION
3.1 Where the Product and Service Specification involves the use of the COCKPIT, you shall use a user name and a password (including the RSA SecurID® Token) and you undertake to protect the logon details (including the RSA SecurID® Token) from all unauthorised use and access.
3.2 You shall be liable to us for any and all loss or damage resulting from any unauthorised use of the logon details unless such loss or damage is the result of negligence of the duty of care incumbent solely on us.
§ 4 PRICE
4.1 Unless otherwise agreed in writing by or for us, we shall be remunerated in accordance with the price list for the Product and Service Specification, such price list being included in the Contract. Prices may be varied by us from time to time by giving you no less than 30 days’ notice.
4.2 Prices payable shall be exclusive of VAT, which shall be charged at the applicable rate as at the date of invoice.
§ 5 PAYMENT
5.1 Unless otherwise agreed in writing by or for us, you shall pay us for all invoiced items by the Due Date and in pounds sterling.
5.2 Our payment method is by direct debit or BACS transfer to such account as we may nominate from time to time in writing. We reserve the right to impose a reasonable surcharge on payments by other methods. Time is of the essence for all payments due to us from you. No payment shall be deemed received until we have received payment in full.
5.3 You shall not, without our prior written consent:
(a) set off any sums payable to you by us against any sums payable to us by you; or
(b) deduct in advance any amounts due from us from payments due from you.
5.4 If any payment is not received by us by the Due Date, then without prejudice to any of our other rights or remedies:
(a) we may cancel any orders in respect of which delivery has not taken place;
(b) credit facilities will be withdrawn, and further supplies of Product and Service Specifications will be on a cash-with-order basis only.
§ 6 CLAIMS AND LIABILITY
6.1 You acknowledge that you have not relied on any statement, promise or representation made or given by or for us which is not expressly set out in the Contract.
6.2 Except as provided in this clause 6, we shall not be liable for any loss or damage of whatever nature and however caused. Nothing in these General Conditions shall, however, exclude or restrict our liability for fraud, for death or personal injury resulting from our negligence or for any matter for which we cannot lawfully exclude (or attempt to exclude) our liability.
§ 7 REPUTATION AND INTELLECTUAL PROPERTY RIGHTS
7.1 You undertake not to do anything calculated or likely to harm our reputation or the reputation of any of our affiliates or any such affiliate’s brands.
7.2 All intellectual property rights in the materials provided by us or on our behalf to you in connection with the Contract shall remain our or our licensors’ property. We hereby grant you a limited, non-exclusive licence to use those intellectual property rights for the duration of the Contract solely for the delivery and/or performance of the Product and Service Specification in accordance with the Contract.
7.3 You shall ensure that any reference to or use of our or our licensors’ trademarks is in a manner and form approved by us and accompanied by an acknowledgement that the trade mark belongs to us or our licensors. You shall not use any other trademarks in relation to the Product and Service Specification without first obtaining our express written consent.
7.4 You shall, immediately on becoming aware of the same, notify us of any infringement or wrongful use of our or our licensors’ trade-mark or other intellectual property rights which comes to your attention, and shall co-operate at all times with us in the prevention of any such infringement or wrongful use.
§ 8 CONFIDENTIALITY
8.1 In this clause “Confidential Information” means the existence and provisions of the Contract and any other information and materials relating to us, our affiliates or our or any such affiliate’s business disclosed to you by or on behalf of us (or otherwise obtained by you) at any time.
8.2 You shall keep the Confidential Information strictly confidential and shall not use it or disclose it to any third party (except solely, if bound by equivalent obligations of confidentiality, any of your personnel that reasonably require access to Confidential Information for the purpose of fulfilling your obligations under the Contract).
8.3 You shall, and shall procure that any such personnel shall, at our request or in any event upon termination of the Contract for any reason:
(a) return any or all Confidential Information to us;
(b) ensure that all Confidential Information stored electronically, digitally or magnetically by you and/or any such personnel is erased; and
(c) cease all further use of Confidential Information.
8.4 Your obligations under this clause do not apply to the extent otherwise required by law or by a court, regulatory authority or other competent authority.
§ 9 REMEDIES
(a) you commit a material breach of the Contract and/or of any other contract between (1) you and (2) us or any of our affiliates (“Other Contract”); or
(b) (i) you make any composition or arrangement with all or any class of your creditors or become subject to an administration or government order or (being an individual or firm) become bankrupt or (being a company) go into liquidation or receivership (otherwise than a voluntary liquidation for the purposes of a bona fide scheme of solvent amalgamation or reconstruction); or (ii) a receiver, trustee, administrator or liquidator is appointed over any of your undertaking, property or assets; or (iii) you cannot pay (or have no reasonable prospect of being able to pay) your debts generally as they become due or suspend any payments to us or cease, or threaten to cease, to carry on your business in the normal course; or (iv) you take, suffer or are the subject of (or propose to take or are threatened with or any step is taken towards) any similar action, event or proceedings in any jurisdiction in consequence of debt; or (v) we reasonably consider that any of the above circumstances are likely to occur,
then without prejudice to any of our other rights or remedies: (A) we shall, by giving you written notice and without any liability to you, be entitled to terminate the Contract and/or (acting, where applicable, on such affiliate’s behalf) such Other Contract with immediate effect or to suspend the performance of our obligations under the Contract and/or (acting, where applicable, on such affiliate’s behalf) such Other Contract; and (B) if any Product and Service Specification has been performed and/or delivered but not paid for, all outstanding sums payable for such Product and Service Specification shall become immediately due and payable (whether or not already invoiced by us).
9.2 Termination of the Contract (for whatever reason) shall not affect:
(a) either party’s rights, obligations or remedies that have accrued before the date of termination; or
(b) the coming into force or continuance in force of any provision of the Contract that is expressly or by implication intended to come into or continue in force by or after such termination.
9.3 We reserve the right, by giving you written notice and without any liability, to postpone performance of the Product and Service Specification (either in part or in its entirety), to amend or revise the scope of the Product and Service Specification ordered by you or to cancel the Contract with immediate effect if we cannot fulfil it due to any circumstances beyond our reasonable control or which make such fulfilment impossible or illegal.
§ 10 DATA PROTECTION
To the extent that we process any of your personal information in connection with this Contract you hereby consent to such processing for the purposes of the performance of this Contract and you agree to comply with the relevant laws of the jurisdiction. We confirm that we will comply with applicable data privacy laws.
§ 11 ASSIGNMENT
You may not, without our prior written approval, assign, charge or otherwise dispose of all or any part of the benefit of the Contract or sub-contract any or all of your obligations under it.
§ 12 GOVERNING LAW AND JURISDICTION
12.1 The Contract and any related dispute or claim (contractual or non-contractual) shall be governed by and construed in accordance with the laws of England and Wales.
12.2 Each party irrevocably submits for all purposes of the Contract (including, without limitation, any such dispute or claim arising from it) to the exclusive jurisdiction of the courts of England and Wales.