TERMS & CONDITIONS*
1. GENERAL
These terms and conditions (“Terms and Conditions”) are provided by 360innovate Limited, a company incorporated in Scotland with (registered number SC361185) , having its registered office at 21 West Nile Street, Glasgow G1 2PS and trading under the name 360innovate (“360innovate”). These terms and conditions apply to the company, partnership, business or individual who/which wishes to purchase services from 360innovate (the “Client”) and the Client hereby agrees to purchase such services in accordance with these Terms and Conditions. These terms and conditions refer to the proposal document issued by 360inovate following our initial discussions with the Client (the “Proposal”). 360innovate shall supply the services specified in the Proposal (the “Services”).
These Terms and Conditions together with the Proposal are referred to as the “Agreement”. Unless otherwise specifically agreed in writing by 360innovate, these Terms and Conditions are the only conditions upon which 360innovate is prepared to supply the Services.
The Agreement supersedes all prior agreements and terms and conditions of whatever nature and sets out the entire agreement and understanding between 360innovate and the Client relating to its subject matter.
360innovate reserves the right to amend or replace these Terms and Conditions at any time. If 360innovate make any substantial changes we will notify the Client by posting a prominent notice on our website, 360innovate.co.uk
2. HEADINGS
Headings are included in these Terms and Conditions for convenience only and shall not affect the construction or interpretation of these Terms and Conditions.
3. PROJECT ACCEPTANCE
A binding contract for provision of the Services in terms of the Agreement shall be formed upon either (i) 360innovate’s receipt of the Proposal signed by the Client; or (ii) 360innovate intimating to the Client its acceptance of a purchase order issued by the Client in response to the Proposal.
4. GENERAL SERVICE PROVISIONS
At the time of the Client's signed acceptance of the Proposal, a non-refundable deposit as set out in the Proposal will become immediately due (the “Deposit”). The commencement date of the Services set out in the Proposal is an estimate only and the Services will not be deemed to commence until 360innovate has received the Deposit..
The Services shall be delivered in accordance with the specification set out in the Proposal (the “Specification”).
Additional expenses may be incurred for any necessary action arising during the course of the Services but not anticipated in the Proposal, including but not limited to printing, design for print and website uploading. These services are chargeable in addition to the charges set out in the Proposal and shall be payable by the Client in accordance with clauses 16 and 17.
The Services shall be deemed to be complete upon either (i) receipt of the Client's written approval; or (ii) 360innovate delivering the final piece of work to be delivered as a result of the Services (the “Work”).
If a choice of two or more designs are presented to the Client during the course of the Services, only the final design selected by the Client shall be deemed to constitute the Work. The Client is not permitted to make ongoing use of any design other than the Work and all other designs presented to the Client during the course of the Services remain the property of 360innovate.
5. DESIGN CREDITS
The Client agrees to allow 360innovate to place the Client’s websites and other designs, along with a link to the Client's site on 360innovate’s own website for demonstration purposes and to use any designs produced by 360innovate for the Client in 360innovate’s own publicity.
6. RIGHTS OF ACCESS
The Client agrees to allow 360innovate all necessary access to computer systems and other locations or facilities used by the Client, as required, in order to complete the Services, including without limitation the necessary read/write permissions, usernames and passwords, personnel and software.
7. CLIENT RESPONSIBILITY
The Client agrees to supply 360innovate with all necessary materials, electronic, or otherwise, required to complete the Services, and to supply them in a timely manner. Any and all delays in the supply of such materials will be logged in 360innovate’s project management process and 360innovate shall not be liable for failure to meet any deadlines as a result of the Client’s failure to provide such materials in a timely manner.
The Client warrants, undertakes and represents to 360innovate that the material provided to 360innovate for the purpose of the Services:-
• is not unlawful, threatening, abusive, malicious, defamatory, obscene, blasphemous, profane or otherwise objectionable in any way;
• does not contain any virus or other hostile computer program;
• does not constitute, or encourages the commission of, a criminal offence;
• does not infringes any patent, trade mark, design right, copyright or any other intellectual property right or similar rights of any person which may subsist under the laws of any jurisdiction;
• conform to all standards laid down by all relevant advertising standards authorities; and
• is not in breach of Data Protection Act 1998 and the Privacy and Electronic Communications EC Directive) Regulations 2003)
360innovate will not include in its designs, any text, images or other data which 360innovate deems at its sole discretion to be in breach of any of the warranties in this Agreement. The Client shall, without hindrance or penalty, allow 360innovate to remove any material included in any design which 360innovate subsequently discovers is in breach of any of the warranties in this Agreement. 360innovate accepts no responsibility or liability for the inclusion in any Work of material provided to 360innovate by the Client in breach of this Agreement.
360innovate will invoice for the Services on the date specified in the Proposal and such invoice date shall not be postponed to reflect any delays caused or contributed to by the Client’s failure to meet the requirements set out in the Agreement.
Time of delivery shall not be of the essence of the Agreement and any indication given by 360innovate of the duration of the Services is to be considered by the Client to be an estimate only. Any estimated date for completion of the Services set out in the Proposal shall be adjusted to reflect the date on which the Services are deemed to commence in accordance with clause 4.
The Client shall immediately advise 360innovate of any changes in the Client’s circumstances that may affect 360innovate’s ability to perform the Services.
The Client shall comply with all other Client obligations detailed in the Proposal.
8. WEBSITE DESIGN
This clause 8 applies only where the Services include web design.
To enable 360innovate to provide web design Services, the Client shall supply 360innovate with data in the following format:-
1 Text in electronic format as standard text (.txt),
2 MS Word (.doc),
Images are to be supplied by the Client to 360innovate in an electronic format via, or e-mail. Images must be of a quality suitable for use without any subsequent image processing, and 360innovate will not be held responsible for any image quality which the Client later deems to be unacceptable. 360innovate shall not be responsible for the quality of any images which the Client wishes to be scanned from printed materials.
Once web design is complete, 360innovate will provide the Client with the opportunity to review the Work. 360innovate agrees to make one set of small textual changes and small adjustments to placement of items on the page at no extra cost (the “Minor Changes”). The Minor Changes do not include changes to images, colour schemes or any navigation features. Minor Changes should be notified to 360innovate within 5 days of the date of final delivery of the Work to the Client, by e-mail or fax and confirmed by post for the attention of the 360innovate project manager. The Client shall be deemed to have accepted the Work if no notification of Minor Changes is received in accordance with this clause 8.
After final delivery of the Work to the Client, any changes required over and above the Minor Changes will be subject to a separate charge in accordance with clause 16.
360innovate shall not be liable in the event that the web design Services and/or the Work fail to meet the Specification as the result of changes made by the Client or a third party without authorisation from 360innovate.
Additional expenses may be incurred for any necessary action arising during the course of the web design Services but not anticipated in the Proposal, including, but not limited to, photography and art direction, photography searches, media conversion, digital image processing, or data entry services. Such expenses shall be payable by the Client in addition to the charges set out in the Proposal.
9. WEB SITE HOSTING AND EMAIL
This clause 9 applies where the Services include website hosting and email services (as defined in the Proposal).
360innovate makes no representation and gives no warranty as to the accuracy or quality of information received by any person via the server provided by 360innovate for the purpose of the web hosting and email services (the “Server”).
While 360innovate will use every reasonable endeavour to ensure the integrity and security of the Server, 360innovate does not guarantee that the Server will be free from unauthorised users or hackers and 360innovate shall not be liable for non-receipt or misrouting of email or for any other failure of email, interruptions of Service or down-time of the Server. 360innovate shall, so far as is permitted by law, have no liability for any loss or damage to any data stored on the Server provided that 360innovate has fulfilled the obligations set out in this clause 9.
The Client shall effect and maintain adequate insurance cover in respect of any loss or damage to data stored on the Server.
The Client represents, undertakes and warrant to 360innovate that:
i) The Client will not use the Server in any manner which infringes any law or regulation or which infringes the rights of any third party, nor will the Client authorise or permit any other person to do so
ii) The Client will not use the Server to post, link to or transmit:
• any material which is unlawful, threatening, abusive, malicious, defamatory, obscene, blasphemous, profane or otherwise objectionable in any way;
• any material containing a virus or other hostile computer program;
• any material which constitutes, or encourages the commission of, a criminal offence or which infringes any patent, trade mark, design right, copyright or any other intellectual property right or similar rights of any person which may subsist under the laws of any jurisdiction;
iii) The Client will not send bulk email or unsolicited e-mail from 360innovate’s network;
iv) The Client shall procure that all mail is sent in accordance with applicable legislation (including the Data Protection Act 1998 and the Privacy and Electronic Communications EC Directive) Regulations 2003) and in a secure manner;
v) The Client will not employ programs, which consume unreasonable system resources, including but not limited to processor cycles and memory;
vi) The Client shall keep secure any identification, password and other confidential information relating to the Client’s account and shall notify us immediately of any known or suspected unauthorised use of the Client’s account or breach of security, including loss, theft or unauthorised disclosure of the Client’s password or other security information;
vii) The Client shall observe the procedures and codes of conduct which 360innovate may from time to time prescribe and shall make no use of the Server which is detrimental to 360innovate’s other Clients.
viii) when accessing other networks connected to 360innovate network, the Client shall comply with the terms and conditions applicable to those other networks.
360 innovate reserves the right to remove any Client material which we deem inappropriate from the 360innovate Server without notice.
In the event that 360innovate receives a notice in connection with any content which the Client or a user of the Client’s website (a “Client User”) has posted or made available using the Server, the Client consents to the release of the Client’s contact details (including the personal contact details of any Client User if such details are available to 360innovate) in connection with any investigation of fraud, intellectual property infringement, piracy, defamation or other unlawful activity. Such information will only be released to the complainant where required by law. In such circumstances 360innovate may, if we are required to do so, disclose the Client’s or the Client User’s name, home address and e-mail address to the complainant or the complainant’s representatives.
The Client’s website hosting and e-mail account with 360innovate cannot be transferred by the Client or used by any person other than the Client.
360innovate will not provide outgoing mail service as standard on any of our hosting packages.
If the Client breaches any provision of this clause 9, 360innovate shall have the right to cancel the relevant Client account and terminate the Services and/or this Agreement immediately.
10. SEARCH ENGINE OPTIMISATION
This clause 10 applies only where the Services include Search Engine Optimisation (“SEO”)
360innovate shall deliver a monthly report to the Client by the last day of each calendar month detailing the outcomes of the SEO services for that month.
Due to the nature of SEO, the SEO Services are provided for a minimum period of 12 months. If the Client wishes to cancel the SEO Services, the Client must give 360innovate written notice of cancellation at least 3 months before the relevant 12 month period expires. If no such notice is received, the Agreement in relation to the SEO Services shall be deemed to continue on a month by month basis. One month’s notice period is required prior to cancelling.
The charge made for SEO Services is an annual charge, payable in advance upon commencement of the SEO Services and thereafter on each anniversary of such commencement, unless the SEO Services are cancelled in accordance with this clause 10.
The Client may be given the option to pay the annual charge in 12 equal monthly instalments however this does not affect the Client’s liability to pay for the full 12 months even if the Client cancels the SEO Services before expiry of the 12 month period. If the Client wishes to pay by instalment the Client shall sign a direct debit mandate or standing order mandate for the payment and agrees not to cancel or amend the payments without the consent of 360innovate. Should payment of any instalment not be made by the Client due to the cancellation of a direct debit or standing order, 360innovate will invoice the Client for the balance remaining due for the 12 month period.
360innovate will provide the SEO Services with reasonable skill and care but cannot guarantee any particular outcome as a result of the SEO Services. The Client should note in particular:-
i) due to the infinite number of considerations that search engines use when determining a site’s ranking, 360innovate cannot guarantee any particular placement within search engine results as a result of the SEO Services;
ii) acceptance by any particular search engine is not guaranteed by 360innovate;
iii) once a site is accepted, the time it takes to appear in search results varies between search engines. Search engine rankings will also vary as new sites competing for the same keywords are added;
iv) 360innovate is not responsible for the performance of the rankings if the Client modifies the Client website without the prior agreement of 360innovate; and[Note: Please confirm if you wish to terminate in this event.]
11. INTELLECTUAL PROPERTY
Nothing in the Agreement operates to transfer any intellectual property rights from 360innovate to the Client.
For the avoidance of doubt all intellectual property rights, including but not limited to copyright, in the Services, the Work and in any software used to deliver the Services will belong to and will remain the property of 360innovate or its third party licensors. 360innovate hereby grants to the Client a non-exclusive licence to use the Work for the sole purpose of obtaining the benefit of the Services as outlined in the Proposal.
12 DATA PROTECTION
360innovate acknowledges that any and all personal data (as defined in the Data Protection Act 1998) processed by 360innovate in terms of the Agreement belongs to the Client and that 360innovate has no right in or to such personal data other than as permitted by the Agreement.
360innovate agrees to act only on the instructions of the Client in respect of such personal data and to take all appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss, damage or destruction of personal data.
13. INDEMNITY
The Client shall indemnify and keep indemnified 360innovate at all times from all claims, actions and proceedings brought against and all losses, damages, costs or expenses and other liabilities (including legal fees) sustained by 360innovate as a result of:-
(i) any of the acts or omissions of the Client, its employees, agents, contractors or otherwise; or
(ii) 360innovate’s use of materials supplied by the Client its employees, agents, contractors or otherwise or any trade marks, logos or other badges of trade approved by the Client its employees, agents, contractors or otherwise; or
(iii) any breach of the Agreement by the Client its employees, agents, contractors or otherwise.
14 WARRANTIES
360innovate warrants, undertakes and represents to the Client that:
i) any website or functionality produced by 360innovate as a result of the Services will operate as set out in the Proposal for a period of 6 months following the date of delivery of the final version of the Work; and
• ii) it will provide the Services and support using all reasonable skill and care and in accordance with industry standards.
The warranty in clause 14 (i) shall only apply where:-
• 360innovate is satisfied that any defect has arisen from 360innovate’s defective materials or workmanship; and
• the relevant Work has been used (i) only for the purpose set out in the Agreement; and (ii) in accordance with 360innovate’s instructions; and
• neither the Client nor any third party has attempted to repair such defect without the consent of an authorised representative of 360innovate.
Except as expressly stated in these Terms and Conditions all other warranties and conditions whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality, title, and fitness for purpose) are hereby excluded to the fullest extent permitted by law.
All information given by 360innovate relating to characteristics or fitness for purpose or performance of the Work is indicative only and no warranty may be implied from that information.
15. LIMITATION OF LIABILITY
This clause 15 sets out 360innovate’s entire liability (including any liability for the acts and omissions of its employees, agents or sub-contractors) to the Client in respect of any breach of 360innovate’s obligations arising under the Agreement and any representation (other than fraudulent misrepresentation) statement or delictual act or omission including negligence arising under or in connection with the Agreement.
Neither party excludes or limits liability to the other party for death or personal injury caused by any negligent act or omission, wilful misconduct or breach of duty of such party.
360innovate does not accept liability for:
• indirect, special or consequential loss or damage,
• loss of business profits, salary, business revenue, goodwill, or anticipated savings, or
• loss which could have been avoided by the Client through reasonable conduct or by the Client taking reasonable precautions.
Subject to the provisions of this clause 15, 360innovate’s liability under any Agreement shall in no event exceed the charges then paid by the Client to 360innovate in relation to the Services provided under that Agreement.
16. CHARGES
All charges payable by the Client for services (the “Charges”) shall be as specified in the Proposal. All Charges are guaranteed for the period identified in the Proposal, after which 360innovate reserves the right to update the Charges at any time.
All Charges for website hosting and e-mail Services and SEO Services are payable until the end of the notice period required to terminate such services and are due in advance either monthly, quarterly or annually, all in accordance with the Proposal.
Any services provided by 360innovate in addition to those services specified in the Proposal will be charged on the basis of time taken to provide those services and on 360innovate’s hourly rate as specified in the proposal. Such additional charges become payable upon delivery of those additional services and are payable in accordance with clause 17.
The Client shall pay all charges (at 360innovate’s hourly rate) and expenses incurred by 360innovate for 360innovate’s investigation of any fault in the Services or the Work reported by the Client where either (i) no fault exists; or (ii) the fault has arisen for any reason other than 360innovate’s defective materials or workmanship.
17. PAYMENT
All Charges in respect of website hosting Services are payable 7 days before the date the website is due to launch and any direct debits or standing orders in respect of such charges require to be setup 7 days before the date the website is due to launch. Otherwise, the Client shall pay the Charges to 360innovate within 30 days of the date of 360innovate’s invoice.
All payments must be in UK Pounds Sterling. 360innovate reserve the right to make adjustments in price if payment is made in any currency apart from UK Pounds Sterling to ensure that 360innovate receives the equivalent UK Pounds Sterling amount dependant on the exchange rate, as determined by 360innovate with reference to publicly available exchange rate information sources at the date of exchange.
If any Client cheque is returned by the bank as unpaid for any reason, the Client will be liable to reimburse 360innovate for any "returned cheque" charges levied by 360innovate’s bank.
No payment will be deemed to have been received until 360innovate has received cleared funds.
Late payment will incur interest at the rate of 2% per annum above the base rate of Lloyds TSB Bank plc from time to time until payment is made.
360innovate may suspend the delivery, publication or release of the Services in respect of the Agreement with the Client until all outstanding payments of charges are made in full. If a website or e-mail hosting account remains unpaid for at least ten days beyond the due date for payment, the account and its associated services are suspended. Once a website hosting or e-mail account has a suspended status, access to files, databases and other content is explicitly denied.
If any Charge remains unpaid for 30 days beyond the due date for payment, 360innovate shall be entitled to remove and permanently delete 360innovate’s and/or the Client's material in relation to those Services, including files, databases and other content from any and all computer systems. Removal of such materials does not relieve the Client of its obligation to pay the Charges due.
The Client agrees to pay 360innovate’s reasonable legal expenses and third party collection agency fees arising as a result of the Client’s failure to pay the Charges in accordance with the Agreement.
Without prejudice to our other rights and remedies under this Agreement, if any sum payable by the Client to 360innovate in respect of any Agreement between the Client and 360innovate is not paid on or before the due date, 360innovate shall be entitled forthwith to suspend the provision of Services to the Client under any Agreement.
For the purposes of this Agreement, Charges shall be considered outstanding until the full amount due has been paid.
18. VAT
All Charges are shown exclusive of value added tax or any other sales taxes (“VAT”) which (if applicable) will be payable by the Client at the relevant rate.
19. TERMINATION
The Agreement shall commence on the commencement date specified in the Proposal and shall, subject as otherwise provided, continue until completion of the Services and payment in full of any outstanding Charges, unless otherwise terminated in accordance with this clause 19.
The Agreement may be terminated by either party by written notice with immediate effect if any of the following has occurred:-
i) either party commits a material breach that it fails to remedy within thirty (30) days of being requested to do so by the other party; or
ii) either party ceases to carry on its activities, becomes unable to pay its debts when they fall due, becomes or is deemed insolvent, has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of the whole or any part of its assets or business, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt, an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction) or enters into liquidation whether compulsorily or voluntarily or shall suffer any analogous event under any jurisdiction which it is subject to.
360innovate may terminate the Agreement or suspend the Services with immediate written notice if the Client fails to pay the Charges timeously in accordance with the terms of the Agreement.
Notwithstanding termination of the Agreement for any reason, the Client will continue to be liable for that proportion of the Charges attributable to those Services provided up until the date of termination, including payment in full of all Charges attributable to any minimum contract period.
No refunds will be made for Services suspended in accordance with this Agreement.
The Client may cancel the Services at any time by giving written notice to 360inovate unless an exception is made clear in the Agreement
On termination of this Agreement or suspension of the Services 360innovate shall be entitled immediately to block the Client’s web site and to remove all data located on it. Should the Client require access to files, databases and other content before it is deleted or removed by 360innovate account reactivation will be required by 360innovate and reactivation services will be charged in accordance with the rates set out in the Proposal.
The Client agrees to allow 360innovate access to any Client computer systems, usernames and passwords required to remove data and/or sites upon termination.
20. MIGRATION OF SERVICES FROM 360INNOVATE:
Where the Client is changing ISP the following provisions apply:
i) where a Client wishes to change their domain management from 360innovate to another service provider the Client shall pay all charges levied by the domain name authorities;
ii) 360innovate does not accept responsibility or liability for any downtime caused by domain migration;
iii) on transfer, all email is purged from the System, responsibility and liability migrates to the new service provider;
iv) it is the responsibility of the new service provider to maintain continuity of email services upon migration;
v) Google Apps accounts are unaffected by any migration from 360innovate and are governed by the terms and conditions in place between Google and the Client.
Where the Client is migrating web services the following provisions apply:
i) on transfer, all data and backups are purged from the System and responsibility migrates to the new service provider;
ii) it is the responsibility of the new service provider to maintain continuity of web services upon migration;
iii) 360innovate does not set up the website on the Client’s new host nor are 360innovate responsible or liable for software incompatibilities or website maintenance of any kind;
iv) depending on the type of web statistics used, these may transfer automatically with the website without interruption or they may be lost and 360innovate gives no guarantees in relation to the transfer of web statistics;
v) 360innovate can on the Client’s request and at a charge create a copy of the Client’s website from our servers. For smaller sites this is then emailed to the Client. For larger sites, 360innovate will provide a CD/DVD. The charge for creating a copy is £45 for sites of up to 5mb in size, which will be emailed and all websites larger than that will be copied to CD/DVD and will be charged at £100. Additional CD/DVDs cost £15 each;
vi) Copies of websites provided to Clients will be tested on 360innovate’s servers as working prior to being sent out but 360innovate cannot guarantee that other hosting company servers will allow full functionality of website copies.
Where the Client is migrating SEO Services the following provisions apply:
i) There is a possibility that, on migration, a website may take a downturn in search engine positioning. There are a variety of reasons for this, particularly when a website shares server space with a large number of other domains. 360innovate cannot be held responsible for any lowering of visibility that results from a transfer away;
360innovate will not enable a Client to migrate any services to a third party until all outstanding Charges and all transfer costs are paid in full .
21. CANCELLATION OF SERVICES
In respect of website design Service, cancellation may be made by the Client at any time by giving written notice to 360innovate.
In respect of website hosting and email Services the Client cancellation may be made by the Client at any time by giving 3 months written notice to 360innovate.
Once delivery of Services has commenced the Client will be liable to pay the Charges accrued by 360innovate up until the date of 360innovate’s receipt of a written notice of cancellation. Such Charges are due and payable in accordance with the Agreement.
In respect of SEO services, 3 months notice of cancellation is required in accordance with clause 10.
22. SOLICITATION OF EMPLOYEES
If the Client engages directly, whether on an employment or consultancy basis, a current employee of 360innovate or a former employee of 360innovate within a 6 month period of that employee’s last day of employment with 360innovate, without 360innovate’s prior written consent, the Client shall pay to 360innovate an introduction fee calculated as follows:-
• for an engagement salary of or equivalent to £0 to £17,999, the introduction fee payment is a one off payment equal to 17.5% of that salary amount;
• for an engagement salary of or equivalent to between £18,000 and £24,999, the introduction fee payment is a one off payment equal to 20% of that salary amount;
• for an engagement salary of or equivalent to between £25,000 and £49,999, the introduction fee payment is a one off payment equal to 25% of that salary amount;
• for an engagement salary of or equivalent to between £50,000 and £99,999, the introduction fee payment is a one off payment equal to 30% of that salary amount;
• for an engagement salary of £100,000 or above, the introduction fee payment is to be agreed by negotiation, but as a minimum will be at least 30% of that salary amount.
23. ASSIGNATION AND SUB-CONTRACTING
360innovate reserves the right to use the services of sub-contractors, agents and suppliers and any work, content, services and usage is bound by their Terms and Conditions. 360innovate will not knowingly perform any actions to contravene these and the Client also agrees to be so bound.
No assignation of Services by the Client is permitted.
24. NO PARTNERSHIP OR AGENCY
Nothing in the Agreement is intended to, or shall operate to, create a partnership between 360innovate and the Client, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right of power).
25. FORCE MAJEURE
360innovate reserves the right to defer the date of delivery or to cancel the Agreement if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control including, without limitation, strikes, lock-outs, or other industrial disputes (whether involving the workforce of 360innovate or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
26. VARIATION
Any variation to the Agreement and to these Terms and Conditions shall only be effective if in writing and signed by an authorised representative of 360innovate.
27. SEVERABILITY
If and in so far as any part or provision of these Terms and Conditions is void or unenforceable it shall be deemed not to be or never to have been or formed a part of the Agreement and the remaining provisions of the Agreement shall continue in full force and effect.
28. SURVIVAL OF TERMS
Clauses 7, 11, 13, 15, 17,19, 20, 22, 30 and 32 of the Terms and Conditions shall survive termination of any Agreement.
29. WAIVER
The failure of either 360innovate or the Client to exercise or enforce any right conferred on that party by the Agreement shall not be deemed to be a waiver of any such right or operate to bar the exercise or enforcement thereof at any time or times thereafter.
30. THIRD PARTY RIGHTS
Save to the extent expressly set out in the Agreement, the Agreement is not intended to nor shall it create any rights, entitlement, claims or benefits enforceable by any person that is not a party to it.
31. NOTICES
Notices under the Terms and Conditions shall be given in writing and delivered by recorded delivery, facsimile (with confirmatory copy), personal delivery or e-mail to 360innovate at its address. Notices sent by recorded delivery shall be treated as received 48 hours after sending (as shown by the sender’s receipt). Notices sent by facsimile shall be treated as received on the first working day after sending (as shown by the timed printout on or with the sender’s copy). Notices sent by personal delivery shall be treated as received at the time when left at the address. Notice sent by e-mail shall be treated as received 24 hours after sending.
32. APPLICABLE LAW
The Agreement shall be governed by and construed in accordance with Scottish law and the parties hereby submit to the non-exclusive jurisdiction of the Scottish courts.
