Terms and Conditions
Business terms
1. DEFINITIONS
1. In these Terms unless inconsistent with the context the following definitions will apply;
The Company shall mean Twisted Fish Limited and also where the context so permits any sub-contractor of the said Company.
Goods shall mean the article or thing or any of them described in the order form.
The Client shall mean the person, firm or company with whom any contract to sell Goods is made by the Company whether directly or indirectly through an agent or factor who is acting for or instructed by any such firm or company, or whose actions are subsequently to the contract ratified by the actual Client.
Terms shall mean these terms and conditions as varied from time to time.
2. PRICES
2.1 The price payable for Goods shall unless otherwise stated by the Company in writing and agreed on its behalf be the formal quotation of the Company. Unless otherwise agreed to in writing all quotations expire 30 days after the date of quotation.
2.2 All prices are ex-factory. The Company will on request arrange delivery at the Client’s expense.
2.3 All prices are exclusive of Value Added Tax which will be charged at the appropriate rate for the time being.
3. ADDITIONAL COSTS
3. The Client agrees to pay for any loss or extra cost incurred by the Company through the Client’s instructions or lack of instructions, or through failure or delay in taking delivery, or through any act or default on the part of the Client, its servants, agents or employees.
4. TERMS OF PAYMENT
4.1 Payment shall be in accordance with the standard terms of payment of the Company in the United Kingdom applicable from time to time and will unless otherwise stated be due within 30 days from despatch of Goods.
4.2 If the Goods are delivered in instalments the Company shall be entitled to invoice each instalment as and when delivery thereof has been made and payment shall be due in respect of each instalment where delivery has been made notwithstanding non-delivery of other instalments or other default on the part of the Company.
4.3 If upon the terms applicable to an order the price shall be payable by instalments or if the Client has agreed to take specified quantities of Goods at specified times a default by the Client in the payment of any due instalment(s) or the failure to arrange and give delivery instructions in respect of any quantity of Goods outstanding shall cause the whole of the balance of the price to become due forthwith.
4.4 The price of the Goods shall be due in full to the Company in accordance with the terms of the contract. The Client shall not be entitled to exercise any set-off, lien or any other similar right of claim.
4.5 The time for payment shall be of the essence of the contract.
4.6 Without prejudice to any other rights it may have the Company is entitled to charge interest on all overdue payments at the rate of 2% per month above the base lending rate of Lloyds Bank plc, such interest to run from the date of invoice notwithstanding 4.1 above.
5. DELIVERY
5.1 The period for delivery shall be the period within which the Goods are intended to be available for despatch by the Company and shall be calculated from the time of the receipt by the Company of the Client’s order or from the receipt of all necessary information to enable the Company to acquire the Goods and the Client shall take delivery of Goods within that period.
5.2 All times or dates given for delivery of the Goods are given in good faith but without any responsibility on the part of the Company. Time for delivery shall not be of the essence of any contract nor shall the Company be under any liability for delay whether or not beyond the Company’s reasonable control.
5.3 No liability for non-delivery partial loss or damage to the Goods occurring prior to delivery or for any claim that the Goods are not in accordance with the contract will attach to the Company:
5.3.1 unless a fully particularised claim is notified in writing by the Client to the Company within seven days of the Company’s notification to the Client that the Goods are ready for delivery.
5.3.2 if the Client has signed for the Goods to the extent of the number of packages signed for.
5.3.3 unless the Client shall have thoroughly examined every consignment as soon as practicable following delivery.
5.3.4 the Client shall have made its claim within the period of seven days of delivery.
5.3.5 if the seal has been broken on any software package forming part of the Goods unless the claim relates to the ineffectiveness of the software.
5.3.6 if in the case of Goods lawfully returned the return of the Goods is not accompanied by all related manuals and documentation in pristine condition.
5.3.7 if in the case of Goods lawfully returned the return of the Goods is not in the same packaging as that in which the Goods were delivered or if that is not possible then secure damage resistant packing suitable for the Goods.
5.4 In the event of a valid claim against the Company for non-delivery partial loss damage or non-compliance with the contract due to the acts or omissions of the Company the Company may at its option replace the Goods at its expense but in that event shall not be under any further or other liability to any person in connection with such non-delivery partial loss damage or non-compliance.
5.5 If the Client shall fail to give notice in accordance with condition 5.4 above the Goods shall be deemed to be in all respects in accordance with the contract and the Client shall be bound to accept and pay for the same accordingly.
5.6 If for any reason the Client is unable to accept delivery of the Goods at the time when the Goods are due and ready for delivery the Company may at its sole discretion without prejudice to its other rights store the Goods at the risk and cost of the Client and take all reasonable steps to safeguard and insure them at the cost of the Client provided that the Client shall be immediately informed thereof.
5.7 Where a quantity of Goods are sold to the Client the Company shall have the right to make delivery by instalments of such quantities and at such intervals as it may reasonably think fit where there is no express provision as to instalments in the contract.
5.8 Where the Goods are for delivery by instalments any defects in any instalment shall not be grounds for cancellation of the remainder of the instalments and the Client shall be bound to accept delivery thereof.
5.9 Where there is a delay in the delivery of the Goods due to difficulty in obtaining supplies (including supplies on acceptable terms) the Company shall have the right to propose a variation of the contract by substituting another product of a similar specification to the Goods. The Client may within 14 days of notification of such proposal decline to accept the substituted product in which event the contract between the Company and the Client will absolutely determine with no financial consequences with regard to the Goods the subject of the proposed variation.
5.10 Where Goods are released to the Client on loan for evaluation purposes the Client shall:
5.10.1 take all reasonable and proper care of the Goods.
5.10.2 return the Goods prior to the expiry of the evaluation period or upon demand by the Company (whichever shall be the sooner) in a properly packed and secured manner utilising the same packing materials and procedures as apply to the original delivery.
5.10.3 pay the full invoice price immediately upon the expiry of the evaluation period in respect of any Goods subject to evaluation which have not been received back by the Company within the evaluation period.
5.11 The Company reserves the right to impose a re-stocking fee where the Company waives its entitlement to refuse to accept a return of Goods, for example, where the Goods have been expressly brought in for the Client.
6. INSTALLATION
6.1 If installation by the Company is included in the purchase price acceptance shall occur at the installation site when the Company demonstrates that the applicable diagnostic or verification programmes work properly or the Goods are otherwise demonstrated to be in normal operating condition. If installation is scheduled or delayed by the Client for more than 21 days after delivery the Client shall be deemed to have accepted the Goods on the twenty-first day from the date of delivery. For the avoidance of doubt acceptance shall not be delayed by the carrying out of the Client’s test procedures (if any) unless otherwise expressly agreed in writing.
6.2 If installation by the Company is not included in the purchase price acceptance by the Client shall be deemed to have taken place on the fourteenth day from the date of collection or delivery as the case may be unless the Client demonstrates to the Company within that period that the Goods do not perform the Company’s established text procedures or programmes.
7. PASSING OF TITLE AND RISK
7.1 The Goods shall remain the property of the Company until all payments due under the contract for the Goods have been made in full and unconditionally and the Client shall keep the Goods separate and identifiable from all other Goods in its possession as bailee for the Company.
7.2 In the event of failure to pay the price in accordance with the contractual obligations the Company shall have power to resell the Goods after reasonable notice such power being additional to (and not in substitution for) any other power of sale arising by operation of law or implication or otherwise.
7.3 Subject to condition 5.6 risk shall pass on delivery.
8. CONDITIONS AND WARRANTIES
8.1 Every description or specification of the Goods is given in good faith based on information received from the manufacturer of the Goods but any conditions or warranties expressed or implied that the Goods shall correspond with such description or specification are hereby expressly negated and the use of any such description or specification shall not constitute a sale by description.
8.2 Any conditions or warranties (whether express or implied by statute common law or arising from conduct or previous course of dealing or trade custom or usage) as to the quality or fitness of the Goods for any particular purpose even if that purpose is made known expressly or by implication to the Company are hereby expressly negated.
8.3 In the case of Goods not of the Company’s manufacture, the Company will pass onto the Client any benefits obtainable under any warranty given by the Company’s supplier, provided that the Goods have been accepted and paid for.
9. SOFTWARE
9.1 The Client hereby acknowledges that all proprietary rights of whatever description in the software supplied and forming part of the Goods shall at all times and for all purposes be and remain vested in the software owner whose identity the Company will reveal to the Client on demand.
9.2 The Client acknowledges that it is its sole responsibility to comply with all terms and conditions of licence relating to such software and the Client will indemnify the Company against any loss of any description arising from the Client’s use of such software.
9.3 The Company will pass to the Client the benefit of the Company’s rights as Client of the software to the extent possible.
10. DEFAULT OR INSOLVENCY OF CLIENT
10. If the Client shall fail to accept the Goods or any instalments or part instalment thereof or shall fail to pay any sum due to the Company at the proper time or make default in or commit any breach of any other obligation or if any distress or execution shall be levied on the Client’s property or assets, or if the Client shall make or offer to make any arrangement or composition with his creditors or commit any act of bankruptcy or if any bankruptcy petition be presented against him or (if the Client is a company) if any resolution or petition to wind up such a company shall be passed or presented or if a receiver or administrator of the whole or any part of such company’s undertaking property or assets shall be appointed the Company in its discretion and without prejudice to any other right or claim may by notice in writing determine wholly or in part any and every contract between the Company and the Client or may (without prejudice to the Company’s rights subsequently to determine the contract for the same cause should it so decide) by notice in writing suspend further deliveries of Goods until all defaults by the Client be remedied.
11. LIMITATION OF LIABILITY
11. The liability of the Company to the Client for any loss or damage of whatsoever nature and howsoever caused shall be limited to and in no circumstances shall exceed the price of the Goods. The Company shall not be liable for any consequential loss.
12. REPRESENTATIONS
12. No statement description information warranty condition or recommendation contained in any catalogue price list advertisement or communication made verbally by any of the agents or employees of the Company shall be construed to enlarge vary or override in any way any of these conditions.
13. ENTIRE AGREEMENT
13. These Terms reflect the entire understanding of the parties as to the matters referred to herein and take precedence over any terms and conditions or agreements or any other contract issued by the Client to the Company. Variation of these Terms shall only be binding on the Company if in writing under the hand of a director or other duly authorised senior employee of the Company.
14. ALTERNATIVE DISPUTE RESOLUTION
14. If a dispute arises between the Company and the Client the parties hereto agree first to use their respective best endeavours in good faith to settle the dispute by mediation before having recourse to arbitration litigation or some other dispute resolution procedure. A party claiming that a dispute has arisen must give written notice to the other party specifying the nature of the dispute. On receipt of such notice the parties must within seven (7) days of receipt convene a meeting between their respective Chief Executive Officers (or nominated deputy) and the other relevant members of management to attempt to resolve the dispute. If the dispute is not resolved within seven (7) days or within such further period as the parties agree, then the dispute is to be referred to a mediation provider appointed by the parties and in default of agreement by the President for the time being of the Law Society.
15. FORCE MAJEURE
15. The Company shall be entitled to delay or cancel delivery or to reduce the amount delivered if it is prevented from or hindered in or delayed in manufacturing obtaining or delivery the Goods by normal route or means of delivery through any circumstances beyond its control including but not limited to strikes, lock-outs, accidents, war, fire, reduction in or unavailability of power at manufacturing plant, breakdown of plant or machinery, or shortage or unavailability of raw materials from normal sources of supply.
16. OBVIOUS ERRORS
16. In the event that the contract (including any tender document) for the sale of the Goods contains any obvious error the contract shall be varied to reflect the true intention of the parties.
17. WAIVER
17. No neglect forbearance indulgence of or giving of extra time by the Company in obtaining payment or enforcing the Terms strictly or at all shall in any way affect the liability of the Client.
18. SEVERABILITY
18. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, then both parties shall be relieved of all rights and obligations arising under such provision but only to the extent that such provision is invalid, illegal or unenforceable and such provision shall be modified to the extent necessary to make it valid, legal and enforceable whilst preserving the intent of the parties. All other provisions of this Agreement shall be regarded as fully valid and enforceable unless otherwise proved.
19. JURISDICTION
19. The purchase of the Goods by the Client and all matters rights and liabilities relating thereto shall in all respects be governed by the laws of and subject to the exclusive jurisdiction of the Courts of England and Wales.
Service terms
1. COMMENCEMENT
1.1. The Contract begins on the date Twisted Fish communicates its Acceptance of the Customer’s order for the Service and continues until ended by the Customer or Twisted Fish in accordance with this Contract. Twisted Fish shall keep records of all Acceptances whether written or orally and such record shall be final conclusive evidence of the order in the event of any dispute.
1.2. The Service commences on the Service Start Date.
1.3. Where Twisted Fish sells equipment to the Customer, the terms of this Contract will not apply in relation to the sale of equipment which will instead be subject to Twisted Fish’s Conditions of Sale located at www.twistedfish.com/#business-terms
1.4. The Customer acknowledges that before entering into a contract for the supply of a Service from Twisted Fish the Customer has expressly represented and warranted that he is not insolvent and has not committed any act of bankruptcy, or being a company with limited or unlimited liability, knows of no circumstances which would entitle any debenture holder or secured creditor to appoint a receiver, to petition for winding up of the company or apply for the appointment of an administrator or exercise any other rights over or against the company’s assets.
2. PROVISION OF THE SERVICE
Site Preparation, Access and Installation
2.1. The Customer agrees to prepare the Site according to any instructions Twisted Fish may give and to provide Twisted Fish with reasonable access to the Site for the purposes of the Contract. The Customer agrees to provide at its expense a suitable place and conditions for Twisted Fish Equipment and, where required, continuous mains electricity supply and connectivity.
2.2. The Customer will obtain any permission needed for Twisted Fish to put Twisted Fish Equipment on the Site.
2.3. The Customer and Twisted Fish will meet each other’s reasonable safety and security requirements when on the Site. The Customer and Twisted Fish agree to look after each other’s equipment on the Site. If the Customer or Twisted Fish damages the other’s equipment it must pay for any repair or replacement needed. This does not apply where the damage results from normal use.
2.4. Twisted Fish will try to provide the Service by any date agreed with the Customer, but all dates are estimates, unless the Service Schedule says otherwise.
2.5. The Customer will be responsible for making the Site good, after any work has been undertaken by Twisted Fish at the Site, including putting items back and for re-decorating.
2.6. The Customer will not permit or make without limitation any attempt to disassemble, deconstruct, break down, hack or otherwise interfere with any Twisted Fish Equipment.
Faults and Repair
2.7. Twisted Fish will try to provide uninterrupted service, but the Customer understands and agrees that from time to time faults may occur.
2.8. If the Customer reports a fault in the Service Twisted Fish will repair the fault in accordance with the Service Schedule. If Twisted Fish agrees to work outside the hours specified in the Contract or if the Customer reports a fault and Twisted Fish finds there is none or that the Customer has caused the fault, Twisted Fish may apply a charge. This charge will be as detailed in the Contract or if not detailed in the Contract based on Twisted Fish’s reasonable costs.
3. REGULATIONS AND USE OF THE SERVICE
3.1. Where Customer Equipment is provided such equipment must be:
a.) technically compatible with the Service and not harm Twisted Fish’s network or another customer’s equipment;
b.) adequately protected by the Customer against viruses and other breaches of security.
Proper use
3.2. The Service must not be used:
i.) in any way that is unlawful or in contravention of any licence, code of practice, instructions or guidelines issued by a regulatory authority, third person’s rights or Twisted Fish’s Acceptable Use Policy located at www.twistedfish.com/termsandconditions ; or
ii.) to send, communicate, knowingly receive, upload, download or use any material that are offensive, abusive, indecent, defamatory, obscene, menacing, cause annoyance, inconvenience, needless anxiety or are intended to deceive; or
iii.) in any way Twisted Fish considers is or is likely to be detrimental to the provision of the Service to the Customer or service to any of Twisted Fish’s other customers.
3.3. The Customer will comply with Twisted Fish’s reasonable instructions regarding health, security, safety or the quality of the Service.
Security
3.4. The Customer is responsible for the proper use of User Security Details, if any, and must take all necessary steps to ensure they are kept confidential, secure and not made available to unauthorized persons.
3.5. If the Customer believes that any User Security Details are or are likely to be used in an unauthorised way, the Customer must inform Twisted Fish immediately. The Customer must not change or attempt to change a user-name without Twisted Fish’s prior agreement unless otherwise specified in the Service Schedule.
3.6. Twisted Fish does not guarantee the security of the Service against unauthorised or unlawful access or use. If Twisted Fish believes there is or is likely to be a breach of security or misuse of the Service Twisted Fish may:
a.) change and/or suspend the User Security Details (and notify the Customer that it has done this); or
b.) require the Customer to change the User Security Details.
Internet Access
3.7. Where the Service allows access to the internet the Customer understands and agrees that the use of the internet is at the Customer’s own risk. When contracted for Internet connectivity services there is a minimum term for that connection, refer to the quote and/or order acknowledgement for the term. This term applies and is non-cancellable regardless of which services you maintain with Twisted Fish. Meaning if your company is no longer a support services customer you will continue to pay for the internet connection(s) until their individual term has expired.
Content
3.8. Where Twisted Fish provides the Customer with Content, the Customer’s use of the Content is at the Customer’s own risk. The Customer understands and agrees that:-
a.) the Content may change from time to time;
b.) the Content can only be used for its own purposes and is protected by copyright, trademark, and other Intellectual Property Rights. The Customer must not copy, store, adapt, modify, transmit, distribute externally, play or show in public, broadcast or publish any part of the Content;
c.) Twisted Fish does not guarantee the accuracy or completeness of the Content;
d.) some of the Content will have its own terms and conditions. These may be displayed online or elsewhere. If the Customer accesses this Content the Customer must keep to these terms and conditions; and
e.) access to any Content provided on a subscription basis as part of the Service will cease when this Contract ends.
3.9. Where the Customer provides Twisted Fish with Content for use in or related to the provision of the Service or uploads any content to a storage facility provided by Twisted Fish under the Service the Customer indemnifies Twisted Fish against any claim and proceedings arising from infringement of any third persons Intellectual Property Rights brought about by the Customer or any 3rd party in relation to use of such content.
Operational changes
3.10. Occasionally, for operational reasons, Twisted Fish may:-
a.) change the way Twisted Fish provides the Service provided that any change to the way Twisted Fish provides the Service does not significantly affect the performance or functionality of the Service; or
b.) interrupt or suspend Service. If this happens Twisted Fish will restore the Service as quickly as possible.
Indemnity
3.11. The Customer will indemnify Twisted Fish against any claims or legal proceedings that are brought or threatened against Twisted Fish by a third party because the Service is or has been used in breach of clauses 3.1-3.6 and 3.8.b.). Twisted Fish will notify the Customer of any such claims or proceedings and keep the Customer informed as to the progress of such claims or proceedings.
3.12. Twisted Fish shall not be liable for any advice or recommendation not given in writing by its employees or agents to the Customer or its employees or agents as to the performance of Services and such advice or recommendation is acted upon entirely at the Customer’s own risk.
3.13. Twisted Fish shall not be liable for any typographical, clerical or other error or omission in any sales literature, proposal, price list, acceptance of offer, invoice or other document or information issued by it.
Monitoring and recording calls
3.14. Twisted Fish may monitor and record calls relating to customer services and telemarketing. Twisted Fish does this for training purposes and to improve the quality of its customer services.
4. CHARGES AND PAYMENTS
General
4.1. Charges for the Service are as detailed in the Service Schedule and calculated using the details recorded by Twisted Fish.
4.2. Twisted Fish will send the bills to the address notified by the Customer to Twisted Fish.
4.3. The Customer will be liable for charges for the Service from the Service Start Date, unless otherwise stated in the Service Schedule.
4.4. Unless otherwise stated in the Service Schedule the Customer agrees to pay:
a.) in advance for subscription, rental, and other recurring charges (including inclusive usage charges); and
b.) in arrears for usage (excluding inclusive usage charges), connection and any other nonrecurring charges.
4.5. All charges are exclusive of VAT which is chargeable at the applicable rate, unless otherwise provided in the Service Schedule.
4.6. As part of its credit management procedures, Twisted Fish may at any time:
a.) require the Customer to pay a deposit or provide a guarantee as security for payment of future bills by the means requested by Twisted Fish; and/or
b.) carry out a credit vet of the Customer. The Customer agrees to provide Twisted Fish with any information Twisted Fish may reasonably require for this.
4.7. Payment is due on the date specified on the bill, unless otherwise stated in the Service Schedule.
4.8. Where Twisted Fish has agreed that the Service can be included within a standard Twisted Fish pricing package or scheme, the Customer agrees that while the Service is included within the pricing package or scheme the charges specified in the Service Schedule may be amended by the terms of the pricing package or scheme. Upon termination of the pricing package or scheme, the charges will revert to those specified in the Service Schedule.
Disputed Bills
4.9. If the Customer disputes any charge on a bill the Customer will notify Twisted Fish in writing within 14 days of the date of the bill with all relevant information.
4.10. If the Customer disputes any charge on a bill the Customer must pay the amount not in dispute.
4.11. In the event that disputed charges are resolved in its favour, Twisted Fish reserves the right to charge the Customer an amount equivalent to the interest that would have accrued on the disputed amount at the standard variable rate that HSBC Bank certifies it would normally pay a commercial customer depositing the disputed amount for the period beginning on the date on which payment is due and ending on the date on which payment is made.
4.12. Any disputes will be resolved promptly and the resolved amount if any is payable immediately.
Late Payment
a.) Unless otherwise specified in the Service Schedule, if Twisted Fish does not receive payment by the due date, Twisted Fish may charge the Customer daily interest on late payments at a per annum rate equal to 8% above the base lending rate of the Bank of England for the period beginning on the date on which payment is due and ending on the date on which payment is made.
4.13. If the Customer does not pay a bill, Twisted Fish may instruct a debt collection agency to collect payment (including any interest and/or late payment charges) on its behalf. If Twisted Fish instructs an agency, the Customer must pay Twisted Fish an additional sum. This will not exceed the reasonable costs Twisted Fish has to pay to the agency, who will add the sum to the Customer’s outstanding debt on Twisted Fish’s behalf.
4.14. If any sum owed by the Customer to Twisted Fish under the Contract or any contract with Twisted Fish is not paid by the due date, Twisted Fish may deduct this sum from any payment or credit due to the Customer under the Contract or any other contract with Twisted Fish.
Frustration
4.15. If any Service or any part thereof becomes impossible to perform or otherwise frustrated Twisted Fish shall be entitled to a fair and reasonable proportion of the price in respect of the work done up to the date thereof. For this purpose any monies previously paid by the Customer shall be retained as against the sum due to Twisted Fish under this provision.
5. CHANGING THE CONTRACT
5.1. Twisted Fish can change the Contract (including the charges) at any time and will publish any change in line with clause 5.2.
5.2. Unless otherwise stated in the Service Schedule, Twisted Fish will publish any changes to the Contract (including the charges) online at http://www.twistedfish.com (or any other online address that Twisted Fish may advise the Customer), and/or in accordance with clause 9.20, as follows:
a.) for changes that are to the Customer’s significant detriment, at least 30 days before the change is to take effect; and
b.) for all other changes at least one day before the change is to take effect.
6. ENDING THIS CONTRACT
6.1. The Customer may cancel the Contract or the Service at any time before Twisted Fish provides the Service. The Customer will pay Twisted Fish any cancellation charge specified in the Service Schedule.
6.2. The Contract or the Service may be ended by either party on 28 days written notice to the other unless otherwise stated in the Service Schedule or Service Contract.
6.3. If the Customer or Twisted Fish ends the Contract or the Service during the Minimum Period the Customer will pay Twisted Fish the termination charges as set out in the Service Schedule. This clause will not apply if:
a.) the Customer ends the Contract or Service during the Minimum Period because Twisted Fish is in material breach of this Contract; or
b.) the Customer gives notice to end the Contract within three months of Twisted Fish notifying the Customer of an increase to the charges or changes to the Conditions in either case to the Customer's significant detriment; or
c.) Twisted Fish ends the Contract or the Service during the Minimum Period for convenience; or
d.) the Contract ends because either clause 8.7 or 9.3 applies.
6.4. The Customer may end this Contract if:
a.) Twisted Fish materially breaches the Contract and, if the breach is capable of remedy, fails to put right the breach within a reasonable time of being asked by the Customer to do so; or
b.) insolvency proceedings are brought against Twisted Fish or Twisted Fish makes an arrangement with its creditors or a receiver, an administrative receiver or an administrator is appointed over any of Twisted Fish’s assets or Twisted Fish goes into liquidation.
6.5. Twisted Fish may suspend the Service or end the Contract, or both, at any time without notice if:
a.) the Customer breaches the Contract or any other contract that the Customer has with Twisted Fish and, if the breach is capable of remedy, fails to put right the breach within a reasonable time of being asked by Twisted Fish to do so. In this clause breach includes non-payment of any valid invoice by the due date; or
b.) Twisted Fish reasonably believes that the Service is being used in a way forbidden by clauses 3.1-3.6 and 3.8.b.). This applies even if the Customer is unaware that the Service is being used in such a way; or
c.) bankruptcy or insolvency proceedings are brought against the Customer or the Customer does not make any payment under a judgement of a Court on time or the Customer makes an arrangement with its creditors or a receiver, an administrative receiver or an administrator is appointed over any of the Customer’s assets or the Customer goes into liquidation. The Customer will continue to pay the charges during any period of suspension.
6.6. If the Contract ends Twisted Fish will refund any money owed to the Customer after first deducting any money due to Twisted Fish under this Contract or any other contract that Twisted Fish has with the Customer.
7. LIMITATION OF LIABILITY
7.1. Twisted Fish accepts liability as set out in the Contract.
7.2. Neither the Customer nor Twisted Fish excludes or restricts its liability for death or personal injury caused by its own negligence or the negligence of its employees or agents acting in the course of their employment or agency or for fraudulent misrepresentation or to any extent not permitted by law.
7.3. Unless otherwise expressly stated in the Contract neither the Customer nor Twisted Fish shall be liable to the other in contract, tort (including negligence), breach of statutory duty or otherwise for any direct loss of profit, revenue, time, anticipated savings or profit or revenue, opportunity, data, use, business, wasted expenditure, business interruption or for any other direct loss which may arise in relation to the Contract whether or not the Customer or Twisted Fish was advised in advance of the possibility of such loss or damage.
7.4. Unless otherwise expressly stated in the Contract neither the Customer nor Twisted Fish shall be liable to the other in contract, tort (including negligence), breach of statutory duty or otherwise for any indirect or consequential loss of profit, revenue, time, anticipated savings or profit or revenue, opportunity, data, use, business, wasted expenditure, loss of or damage to physical property, business interruption or for any other indirect or consequential loss or punitive damages which may arise in relation to the Contract whether or not the Customer or Twisted Fish was advised in advance of the possibility of such loss or damage.
7.5. Subject to clauses 7.2, 7.3 and 7.4, the Customer and Twisted Fish accept liability to the other in contract, tort (including negligence) breach of statutory duty or otherwise for direct loss limited to the amounts specified in the Service Schedule.
7.6. Clause 7.5 will not apply to any obligation to pay charges or to clauses 3.11 and 8.5.
7.7. Each part of this clause operates separately. If any part of a clause is held by a Court to be unreasonable or inapplicable the rest of the clause shall continue to apply.
7.8. The Customer is responsible for reviewing whether the Customer should enter into a business continuity insurance contract.
8. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
Intellectual Property
8.1. Except as expressly set out in the Contract, the Customer and Twisted Fish do not acquire any rights or licences to the other’s Intellectual Property Rights.
8.2. If Software is provided to enable the Customer to receive and use the Service, Twisted Fish grants the Customer for the duration of the Contract a non-exclusive, non-transferable licence to use such Software for its own use. Unless otherwise agreed in writing, any licence granted by Twisted Fish under this clause 8.2 will end when the Contract is terminated.
8.3. If the Service provides the Customer with Software licensed by third parties who require the Customer to accept their terms of use, the Customer must keep to those terms.
8.4. Except as permitted by applicable law or as expressly permitted under the Contract the Customer must not, without Twisted Fish’s prior written consent, copy, de-compile or modify any software, copy manuals or documentation or permit anyone else to do so.
8.5. Twisted Fish will indemnify the Customer against all claims and proceedings arising from infringement of any third person's Intellectual Property Rights by the provision of the Service to the Customer. This indemnity does not apply to claims or proceedings arising from:
a.) the use of the Service in conjunction with any equipment, software or any other service not supplied by Twisted Fish; or
b.) any modification which was not made by Twisted Fish or with Twisted Fish’s prior written consent; or
c.) designs or specifications supplied by the Customer; or
d.) the use of the Service other than in accordance with the terms of the Contract; or
e.) breach by the Customer of clause 3.8.d.) or 8.3.
8.6. As a condition of this indemnity in clause 8.5 the Customer must:-
a.) notify Twisted Fish promptly in writing of any allegation of infringement;
b.) make no admission relating to the infringement;
c.) allow Twisted Fish to conduct all negotiations and proceedings in respect of any such claims and give Twisted Fish all reasonable assistance in doing so (Twisted Fish will pay the Customer’s reasonable expenses for such assistance); and
d.) allow Twisted Fish to modify the Service as set out in clause 8.7.
8.7. If the Service becomes, or Twisted Fish believes it is likely to become, the subject of a claim of infringement of any Intellectual Property Rights Twisted Fish, at its option and expense, may secure for the Customer a right of continued use or modify or replace the Service so that it is no longer infringing, provided that the modification or replacement does not materially affect the performance of the Service. If the indemnity in clause 8.5 applies and none of the remedies in this clause is available to Twisted Fish on reasonable terms, Twisted Fish may notify the Customer and terminate the Service without liability to the Customer.
8.8. All software specifications, drawings, plan designs and technical documents and information supplied by Twisted Fish for the Customer’s use or information shall remain at all times Twisted Fish’s exclusive property and must not be copied, reproduced, transmitted or communicated to a third party without Twisted Fish’s prior consent in writing.
8.9. Software and Hardware configurations applied by Twisted Fish to any equipment including, but not restricted to, those applied to networking equipment or computer servers or computers or other devices as part of the Service whosoever the owner of the equipment remain the intellectual property of Twisted Fish.
Confidentiality
8.10. Except to the extent any disclosure is required by law Twisted Fish and the Customer will keep in confidence any information, whether written or oral, of a confidential nature obtained under or in connection with the Contract. The Customer and Twisted Fish will not, without the consent of the other, disclose such information to any person other than:
a.) their Group Company employees or professional advisers who need the information in order for the Customer or Twisted Fish to fulfil its obligations under the Contract; or
b.) in the case of the Customer, its Users to the extent that they are required to use or access the Service; or
c.) in the case of Twisted Fish, the employees or professional advisers of its suppliers who need the information in order for Twisted Fish to fulfil its obligations under the Contract.
8.11. Information will not be treated as confidential if it is:
a.) in the public domain other than in breach of the Contract; or
b.) lawfully in the possession of the Customer or Twisted Fish before disclosure has taken place; or
c.) obtained from a third person who is free to disclose it; or
d.) replicated independently by someone without access or knowledge of the Information.
8.12. Where the Freedom of Information Act 2000 applies to the Customer and the Customer receives a request under the Act that includes any information held by the Customer that was provided by Twisted Fish in connection with the Contract the Customer will:-
a.) notify Twisted Fish immediately of the request; and
b.) give Twisted Fish at least five Business Days to make representations.
9. GENERAL TERMS
Matters Beyond Reasonable Control
9.1. If the Customer or Twisted Fish is unable to perform, or is delayed in performing, any obligation under the Contract because of something beyond its reasonable control including act of God, lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes or acts or omissions of local or central government or other competent authorities, or beyond the reasonable control of its suppliers, it will have no liability to the other for that failure or delay in performing.
9.2. Twisted Fish will not be liable for failure to or delay in supplying the Service if:
a.) another supplier delays or refuses the supply of an electronic communications service to Twisted Fish and no alternative service is available at reasonable cost; or
b.) legal or regulatory restrictions are imposed that prevent Twisted Fish from supplying the Service.
9.3. If any of the events detailed in clauses 9.1 or 9.2 continue for more than three months the Customer or Twisted Fish may terminate the Contract in whole or part by written notice to the other.
Escalation and Dispute Resolution
9.4. Twisted Fish will try to work through any dispute that the Customer may have with Twisted Fish. If this does not resolve the dispute then the Customer may refer the matter to the relevant dispute resolution service as set out in clause 9.5 below.
9.5. Any dispute must be raised in writing with the Customer’s or Twisted Fish’s representative as appropriate giving all relevant details including the nature and extent of the dispute. The Customer and Twisted Fish will use reasonable endeavours to resolve any dispute as follows:
a.) a dispute which has not been resolved by the Customer's or Twisted Fish’s representative within 14 days of being raised may be referred by the Customer or Twisted Fish to the first level by written notice to the other; and
b.) if the dispute is not resolved at the first level within 14 days of referral, the Customer or Twisted Fish may refer the dispute to the second level by written notice to the other.
9.6. The Customer’s and Twisted Fish’s representatives at the first and second levels are as notified by the Customer and Twisted Fish to the other from time to time.
9.7. If the dispute is not resolved after the procedures detailed in clause 9.5 have been followed then, if the Customer and Twisted Fish agree, the dispute will be settled by mediation in accordance with the procedures specified by the Dispute Resolution Service – Chartered Institute of Arbitrators (“DRS-CiArb”). If the dispute is referred to a mediator:-
a.) the mediator will be appointed by agreement of the Customer and Twisted Fish. If the Customer and Twisted Fish fail to agree within seven days of a proposal by one party, the mediator will be appointed by DRS-CiArb; and
b.) all negotiations on the dispute and any agreement reached will be kept confidential.
9.8. Nothing in this clause 9.4-9.7 shall prevent the Customer or Twisted Fish from exercising any rights and remedies that may be available in respect of any breach of the provisions of the Contract.
Transfer of Rights and Obligations
9.9. The Customer may not transfer any of their rights or obligations under the Contract without the written consent of Twisted Fish, except that the Customer may transfer its rights or obligations or both to a Group Company with the written consent of Twisted Fish. Such consent not to be unreasonably withheld or delayed.
9.10. Twisted Fish may transfer its rights or obligations or both without consent provided that it notifies the Customer that it has done so.
9.11. Twisted Fish may sub-contract performance of any Service or part thereof.
Severability
9.12. If any term of the Contract is held invalid, illegal or unenforceable by any court of competent jurisdiction, it will be severed and the remaining terms will continue in full force as if the Contract had been made without the invalid, illegal or unenforceable terms.
Survival
9.13. Clauses 4.13, 8.10, 8.11 and 8.12 will survive the termination or expiry of this Contract for two years.
9.14. Unless otherwise specified in the Service Schedule, Twisted Fish grants the Customer the right to use such configurations as specified in Clause 8.9 on the equipment to which they were originally applied for a period of 5 years after the termination or expiry of this Contract unless terminated by Twisted Fish as a result of invocation of clause 6.5 in which case the Customer agrees that Twisted Fish may for the purpose of recovery or protection of its intellectual property enter the premises of the Customer without prior notice to the Customer and remove such configurations.
Entire Agreement
9.15. The Contract contains the entire agreement between the Customer and Twisted Fish and replaces all previous written or oral agreements relating to its content.
9.16. The Customer and Twisted Fish agree that:
a.) they have not been induced to enter into the Contract by, nor have they relied on, any statement, representation, warranty or other assurance not expressly incorporated; and
b.) in connection with the Contract their only rights and remedies in relation to any statement, representation, warranty or other assurance are for breach of the Contract and that all other rights and remedies are excluded.
9.17. The terms of clauses 9.15 and 9.16 will not affect the rights or remedies of the Customer and Twisted Fish for any fraudulent misrepresentation.
Waiver
9.18. No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach. Rights of Third Parties
9.19. A person who is not the Customer or Twisted Fish (including an employee, the officer, agent, representative or subcontractor of the Customer or Twisted Fish) has no right under Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. This does not affect any right or remedy that exists or is available apart from that Act.
Notices
9.20. Notices given under the Contract must be in writing and delivered to the following addresses unless otherwise stated in the Contract:
a.) to Twisted Fish at the address shown on the bill or any address which Twisted Fish provides to the Customer for this purpose; or
b.) to the Customer at any one or more of the following: the address to which the Customer asks Twisted Fish to send bills or the address of the Site or the Customer’s primary email address or if the Customer is a limited company, its registered office.
c.) This clause does not apply to notices given under clauses 1.1, 4.2 and 5.1.
9.21. The Customer must inform Twisted Fish immediately if there is any change to any of the contact information the Customer provided to Twisted Fish.
Law and Jurisdiction
9.22. The Contract is governed by the law of England and Wales and is subject to the non-exclusive jurisdiction of the English courts.
9.23. Words in the singular include the plural and in the plural include the singular.
9.24. Any phrase introduced by the terms “include”, “including”, “in particular” or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms.
9.25. The headings in this agreement do not affect its interpretation. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this agreement.
9.26. Unless the context otherwise requires:
a.) references to the Twisted Fish and the Customer include their permitted successors and assigns;
b.) references to statutory provisions include those statutory provisions as amended or re-enacted; and
c.) references to any gender include all genders.
Data Protection
9.27. The Customer and Twisted Fish will comply with their respective obligations under the Data Protection Act 1998 and any data protection, privacy or similar laws that apply to any personal data processed in connection with the Contract. The Customer and Twisted Fish will provide such help and co-operation as is reasonably necessary or requested by the other to enable compliance with this clause.
Customer’s Instructions
9.28. Twisted Fish may take instructions from a person whom it thinks, with good reason, is acting with the Customer’s permission.
10. DEFINITIONS
10.1. In the Contract the following terms have the meanings shown next to them:
Twisted Fish - Twisted Fish Limited, 1 Stanhill, Horley, Surrey RH6 0EP, registered in England No. 03495557.
Twisted Fish Equipment - any equipment, including any Software, owned or controlled by Twisted Fish and placed on the Site to provide the Service.
Acceptance - shall mean the order acknowledgment whether by a document issued or given orally by Twisted Fish to the Customer or by email from Twisted fish to the Customer after either Twisted Fish has accepted an order from the Customer or the Customer has accepted a proposal from Twisted Fish in connection with the Service.
Conditions - these Twisted Fish Standard Terms and Conditions for Services, this agreement.
Content - applications, data, information, video, graphics, sound, music, photographs, software or any other material.
Contract - this agreement between Twisted Fish and the Customer comprising the following documents and, unless otherwise stated in the Service Schedule, in the following order of precedence:
the order/registration form;
the Service Schedule;
the Conditions;
the Customer Requirements Form (if any); and
any other documents expressly incorporated by any of these documents or by agreement between the Customer and Twisted Fish.
Customer - the person with whom Twisted Fish contracts to provide the Service.
Customer Equipment - any equipment, including any software, for use with the Service that is not part of Twisted Fish’s network and which is owned or controlled by the Customer.
Customer Requirements Form - the Twisted Fish form that sets out the requirements for the Service agreed between the Customer and Twisted Fish.
Group Company - a subsidiary or holding company including a holding company, or a subsidiary of any such holding company, all as defined by Section 736 of the Companies Act 1985 and as amended by the Companies Act 1989.
Intellectual Property Rights - any patent, petty patent, registered design, copyright, design right, database right, rights in designs, invention, semiconductor topography right, know-how, or any similar right (whether registered or unregistered) exercisable in any part of the world and including any applications for the registration of any patents or designs.
Minimum Period - the intended minimum period over which the Service will be provided as stated in the Service Schedule, or the order/registration form, and measured from the Service Start Date.
Normal Business Hours - 9.00 am to 5.00 pm local UK time during a Business Day
Service - the service or part of the service specified in the Service Schedule.
Service Level - the standard of Service set out in the Service Schedule.
Service Schedule - the schedule to these Conditions that describes the Service to be provided by Twisted Fish or where applicable the terms of a Twisted Fish pricing package.
Service Start Date - the date on which the Service is first made available to the Customer unless otherwise stated in the Service Schedule. This may sometimes also be referred to as the Operational Service Date.
Site - the place(s) at which Twisted Fish provides Service.
Software - any software and associated written and electronic documentation and data provided by Twisted Fish under the Contract.
User - anyone who is permitted by the Customer to use or access the Service.
User Security Details - any IDs, user names, personal identification numbers and passwords.
Business Day - any day between Monday and Friday, excluding bank and public holidays.
