1. Definitions and interpretation
1.1 In our agreements;
1.1.1 “Confidential information” means any information relating to a business, including but not limited to products, affairs and finances and trade secrets including technical data and know-how relating to the business or any business contacts and any affiliated companies or subsidiaries;
1.1.2 “Intellectual Property Rights” means any and all patents, trade marks, service marks, copyright, moral rights, rights in design, know-how, confidential information and all or any other intellectual or industrial property rights whether or not registered or capable of registration and whether now or in the future subsisting in the United Kingdom or any other part of the world together with all or any goodwill and accrued rights of action;
1.1.3 “Personal Data” means data as defined in Section 1 of the Data Protection Act 1998.
1.1.4 “The Agreement” means these terms and conditions together with any additional terms in respect of a particular service and any document or documents referred to in any Contract Specification.
1.1.5 “Contract Specification” means a document setting out the necessary details about the specific service requirements.
1.2.1 Singular words include the plural and vice versa;
1.2.2 reference to any legislation, statute, enactment, order, regulation or other similar instrument shall be construed as a reference to it as amended or re-enacted;
1.2.3 reference to any person includes natural persons and partnerships, firms and other incorporated bodies and all other legal persons of whatever kind and however constituted and their successors and permitted assignees or transferees;
1.2.4 the words “include”, “includes” and “including” are to be read as if they were immediately followed by the words “without limitation”;
1.2.5 unless the context otherwise requires, references to ‘Crimson Crab’, ‘we’, ‘our’ or ‘us’ refers to Crimson Crab Limited;
1.2.6 unless the context otherwise requires, references to ‘the client’, ‘you’ or ‘your’ refer to the client or potential client of Crimson Crab.
2.1 These Terms and Conditions shall apply to all and any contracts for the supply of Services by Crimson Crab to the Client and to the exclusion of all other terms and conditions, including any terms and conditions the Client may purport to apply under any purchase order, confirmation of order or similar documents.
3. Payment Terms
3.1 Invoices will be provided for payment within 7 days.
3.2 Any disbursement, reasonable general expenses and reasonable travelling expenses (including mileage at the HMCR rate, hotel and other out-of-pocket expenses) properly incurred in the performance of duties under an agreement by Crimson Crab’s personnel may be invoiced.
3.3 Please raise any invoicing disputes within 7 days.
3.4 Late payment may attract statutory penalties, interest and debt recovery costs. Such costs may include, but are not limited to, the fees paid to any third party debt collecting agency instructed to collect the late payment from the Client.
4.1 The Client may terminate the agreement if Crimson Crab:
4.1.1 commits a serious breach of the terms which it fails to remedy within thirty days of receipt of written notice from the Client specifying the breach and requesting remedy (on written notice to the Crimson Crab following the end of the thirty day period);
4.1.2 persistently neglects, fails or refuses to perform the services to the Clients reasonable satisfaction, which it fails to rectify within thirty days of receipt of written notice from the Client specifying the nature of the neglect, failure or refusal and requesting rectification (on written notice to the Crimson Crab following the end of the thirty day period);
4.1.3 acts in any way materially contrary to the Clients interests whilst providing the services which it fails or is unable to correct within fifteen days of receipt of written notice from the Client specifying the nature of the act and how it is materially contrary to the Clients interests and requesting correction (on written notice to the Crimson Crab following the end of the fifteen day period);
4.1.4 has a receiving order made against it, or makes any arrangement with it’s creditors (immediately on notice);
4.1.5 where the Agreements term is twelve months or more, the Client may terminate the agreement after four monthly payments have been made, on payment of a termination fee of four times the monthly payment amount or the total of the remaining monthly payments whichever is the less (on written notice to the Crimson Crab giving 30 days notice of the proposed termination date).
4.2 Crimson Crab may terminate the agreement if the Client:
4.2.1 fails to make any outstanding payment within fifteen days of receiving written notice from Crimson Crab that the payment is late (on written notice to the client following the end of the fifteen day period);
4.2.2 commit a serious breach of the terms which the client fails to remedy within thirty days of receipt of written notice from Crimson Crab specifying the breach and requesting remedy (on written notice at any time following the end of the thirty day period);
4.2.3 is involved in any regulatory actions, civil or criminal proceedings or any other acts or omissions in respect of which may, in the sole opinion of Crimson Crab, be prejudicial to Crimson Crab or bring Crimson Crab, the Reputation Academy or a member of the Reputation Academy or a Reputation Advocate into disrepute (immediately on notice);
4.2.4 become insolvent or make an assignment for the benefit of creditors (immediately on notice).
4.3 The client will be liable to Crimson Crab in respect of all fees and expenses and any outstanding balances must be settled in full on termination.
4.4 The termination of the agreement for whatever reason will be without any compensation or damages to the client.
4.5 Termination does not remove the rights of either party to recover damages from the other.
5.1 At no time will Crimson Crab personnel hold themselves out as being an employee or legal representative of the client or sign any document on the clients behalf.
5.2 The relationship is limited to the performance of the terms and conditions of the agreement. Nothing in the agreement shall be construed as to create a partnership or to authorise either party to act as a general agent for the other, or to permit either party to bind the other except as set out in the agreement, or to borrow money on behalf of the other or to use the credit of either party for any purpose.
6. Intellectual Property and Copyright
6.1 Any material supplied by Crimson Crab may be used for the Clients legitimate business purposes and circulated within the client organisation provided that no trademark, copyright or other proprietary notices are removed. Material may not otherwise be copied, reproduced or redistributed. In particular it must not be exploited for commercial gain, unless separately agreed in writing, or to cause loss (including loss of profit) to Crimson Crab.
6.2 The Client is not entitled to describe the relationship with Crimson Crab in any terms without prior written consent from us as to the form of wording for each such use.
6.3 This term survives the termination of the agreement for whatever reason.
7. Confidentiality and Information Security
7.1 The Client agrees to give Crimson Crab access to certain confidential information relating to the affairs of the business solely for the purpose of fulfilment of the agreement.
7.2 Where it is necessary for Crimson Crab to share information with third parties solely for the purpose of the fulfilment of the agreement the client hereby gives the necessary specific permission and consent to share information to the extent that may be required for the performance of the Services
7.3 Whilst the other party’s confidential information is in possession of either party it is agreed that appropriate and reasonable technical and organisational measures will be taken to protect it against accidental loss, unauthorised disclosure, destruction or damage.
7.4 Both parties agree not to use, sell, market, or disclose confidential information to any third person, firm, corporation, or association for any purpose, without the others express written authorisation, other than to employees and advisors for the purpose of the conduct of discussions or the discharge of any duties under this agreement.
7.5 Third party disclosures will only be made if the third party agrees to be bound by the terms of this agreement in writing. Each party agrees to be liable to the other for any loss or damage caused by any use made of confidential information by any person provided with copies or to whom it has been disclosed. This does not apply to;
7.5.1 any authorised use or disclosure; or
7.5.2 a disclosure required by law; or
7.5.3 any information which is already in (or comes into) the public domain otherwise than through unauthorised disclosure.
7.6 On termination of the agreement and on receipt of a written request both parties agree to:
7.6.1 return, within one month, all hard copies of documents and all samples or other items from which confidential information can be acquired that, at the time of the receipt of the notice, are in their possession
7.6.2 securely delete, (and provide written confirmation within one month), all electronic copies of documents from which confidential information can be acquired that, at the time of the receipt of the notice, are in their control.
7.6.3 These obligations continue with respect to each item of the confidential information following the termination of the business relationship between the parties, and such obligations shall not terminate until such item shall cease to be secret and confidential and shall be in the public domain, unless such has occurred as a result of wrongful conduct by either party or their advisers agents, servants, officers, or employees.
7.7 Both parties consent to the holding and processing of data for legal, personnel, administrative and management purposes.
8. Assignment and Subletting of Contract
8.1 Crimson Crab utilises suitable personnel who will comply fully with the terms of the agreement.
8.2 Crimson Crab may assign its obligations under this Agreement to a third party without the Client’s consent.
8.3 Nothing in the preceding sub-clause shall however prevent the Client from enforcing its rights under this Agreement against Crimson Crab.
8.4 The Client may not assign any of its rights or obligations under this Agreement without the prior written consent of a Director of Crimson Crab and any such attempt is void.
9.1 Any warranties and conditions provided in this Agreement shall be exclusive.
9.2 All other warranties and conditions, whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the performance of the Services.
9.3 Please remember that compliance guidance is an interpretation of current relevant legislation; however the Courts are the final arbiters in matters of legislative interpretation. Therefore the services are provided on an ‘as is’ basis with no guarantee of success and reliance on information and materials supplied is entirely at the clients own risk.
9.4 Any statements made about a course of action or foreseeable result is an expression of opinion only, based on information available at the time and is no guarantee of any particular outcome.
9.5 Crimson Crab excludes all liability in respect of any loss or damage resulting or arising from or in connection with the use of the services.
10.1 The Client shall keep Crimson Crab indemnified in full against all direct, indirect and consequential liabilities (including, but not limited to, loss of profits, loss of business and loss of contracts), loss, damages, injury, costs and expenses (including legal and professional fees) awarded against or paid by us in connection with any claim made against us arising through the Client’s breach of these terms.
10.2 The Client shall indemnify Crimson Crab in respect of any direct loss incurred by Crimson Crab in the performance of the Services in consequence of any negligent act or omission committed by any person or organisation acting on behalf of the Client.
10.3 Crimson Crab shall indemnify the Client in respect of any direct loss incurred by the Client in consequence of any negligent act or omission committed by any person or organisation acting on behalf of Crimson Crab in the normal course of the performance of the Service.
10.4 Nothing in the agreement excludes or limits Crimson Crab’s liability for:
10.4.1 death or personal injury resulting from negligence;
10.4.2 any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by Crimson Crab; or
10.4.3 any liability which cannot be excluded by law.
11 Limitation of Liability
11.1 The liability of Crimson Crab to the Client under this Agreement shall be limited to any direct loss suffered by the Client as result of the negligent performance of the Services due to a lack of reasonable care and skill and only where the Client notifies Crimson Crab of the negligent act or omission in question within seven days of the date when the Client became, or should reasonably have been, aware of that act or omission.
11.2 Crimson Crab’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance of the Contract shall be limited to the amount paid by you in the twelve months proceeding the date to which any claim relates and will not include liability for loss of profits or data, business interruption or costs of procurement of substitute goods or services, or for any indirect, special or incidental or consequential damages however caused.
11.3 Crimson Crab shall not be liable for any loss caused by any act or omission of one of its operatives where that operative was not acting in the normal course of performance of the Services.
11.4 Crimson Crab shall not be liable for any loss or damage arising from the performance of services that amount to a variation of the Services to be performed agreed under this Agreement unless such variation has been agreed in compliance with this Agreement.
11.5 Crimson Crab shall not be liable for any consequential, special or indirect damages or loss suffered by the Client, including but not limited to loss of profits and liquidated damages.
12. Force Majeure
12.1 Neither party shall be entitled to damages from the other party, or to terminate this Agreement where the other party acts in default or material breach of this Agreement where that default or breach was caused by conditions or events beyond its reasonable control including, but not limited to:
12.1.1 Strike, lockout or other labour dispute affecting the employees of Crimson Crab or the Client where in the latter case the effect is to prevent or hinder Crimson Crab’s operatives from performing its duties;
12.1.2 Acts of God;
12.1.3 Natural disasters;
12.1.4 Acts of war or terrorism;
12.1.5 Act or omission of government, highway authorities or telecommunications carrier, operator or administrator;
12.1.6 Delay in manufacture, production or supply by third parties of equipment or services required for the performance of the Service;
12.1.7 Any event preventing Crimson Crab’s operatives from attending the Client’s premises to perform the Services including but not limited to adverse weather conditions, road closure or congestion and mechanical breakdown;
12.1.8 Any hazard at the Client’s premises including but not limited to impeded access or exit routes, structural defects, presence of noxious, combustible, radioactive or toxic substance which, in the reasonable opinion of Crimson Crab, comprises an unacceptable risk to the health and safety of its operatives;
13 Dispute Resolution
13.1 The parties shall attempt to resolve any dispute arising out of or relating to the agreement through negotiations between senior executives of the parties, who have authority to settle the matter.
13.2 If the matter is not resolved by negotiation within 30 days of receipt of a written ‘invitation to negotiate’, the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution procedure, or in default of agreement, through an ADR procedure as recommended to the parties by the President or the Vice President, for the time being, of the Chartered Institute of Arbitrators.
13.3 If the matter has not been resolved by an Alternative Dispute Resolution procedure within 60 days of the initiation of that procedure, or if any party will not participate in the procedure, the dispute may be referred to arbitration by any party.
13.4 The seat of the arbitration shall be England and Wales.
13.5 The arbitration shall be governed by both the Arbitration Act 1996 and Rules as agreed between the parties.
13.6 Should the parties be unable to agree on an arbitrator or arbitrators, or be unable to agree on the Rules for Arbitration, any party may, upon giving written notice to the other parties, apply to the President or the Vice President, for the time being, of the Chartered Institute of Arbitrators for the appointment of an Arbitrator or Arbitrators and for any decision on rules that may be necessary.
13.7 Nothing in this clause shall be construed as prohibiting a party or it’s affiliate from applying to a court for interim injunctive relief.
13.8 We also support online dispute resolution and provide this link to the European Commission’s Online Dispute Resolution platform http://ec.europa.eu/consumers/odr/.
14.1 This document together with any service specific agreement in relation to a particular Service and any contract specification constitutes the totality of the agreement between the parties in relation to the subject matter and it supersedes all prior agreements and understandings relating to the subject matter.
14.2 Any amendments or variations will only be valid if they are recorded in writing and signed by both parties.
14.3 Any notices required by the agreement will be sent to the signatories by electronic mail or a letter sent by registered post or recorded delivery to the addresses notified at the time of signature.
14.4 The agreement is governed by English Law and the English Courts have exclusive jurisdiction.
14.5 Neither party intends by virtue of the Contracts (Rights of Third Parties) Act 1999 that any of the terms should be enforceable by a person who is not a party to it.
14.6 No failure or delay by either party in exercising any right, power, or remedy under this agreement is a waiver of any such right, power or remedy.
14.7 If any provision of the agreement is unlawful, void or unenforceable it is severed from the agreement and the remaining provisions remain in full force and effect.