Terms & Conditions

EVERYMIND SOLUTIONS LTD
TERMS AND CONDITIONS

Definitions and interpretation
1. Definitions
  In this agreement;
  Client, Commencement Date, Minimum Term, Services, Provider have the meanings set out in the Order Form.
  Payment Terms: 30 days from date of Invoice.
  Fee: The Fee as set out in the Order Form.
  Order Form: The form signed by a Client to agree to these Terms and Conditions and to enter into a legally binding contract with the Provider on the basis of the terms of this document and the Order Form which is for the avoidance of doubt incorporated into this Agreement.
2. Interpretation
  In this Agreement unless the context otherwise requires:
  1. words importing any gender include every gender;
  2. words importing the singular number include the plural number and vice versa;
  3. words importing persons include firms, companies and corporations and vice versa;
  4. references to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement;
  5. reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
  6. any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
  7. the headings to the clauses, schedules and paragraphs of this Agreement are not to affect the interpretation;
  8. any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and
  9. where the word including is used in this Agreement, it shall be understood as meaning including without limitation.
Performance of the Services
1. The Provider shall use reasonable endeavours to provide the Services to the Client from the Commencement Date or meet such other dates as agreed by the Parties
2. Time shall not be of the essence
Mid-Term Alterations
1. Any mid-term alterations to add any new or additional services are permitted by the Provider shall trigger the requirement for the Client to be provided with the most up to date Terms and Conditions at the time of the alteration and will be legally bound by the Terms and Conditions at the time of the mid term alteration. The Client shall be entitled during the Term to subscribe to any new or additional services which the Provider supplies. Verbal modifications are not considered to be binding and the Client will be required to complete an updated Order Form.
2. If the Client wishes to subscribe to additional services, the Client shall notify the Provider in writing following which the Provider shall supply written confirmation of the additional services requested (‘the Additions’) along with the new monthly cost and the anticipated start date and minimum period,
3. Once the Client confirms by return agreement to terms proposed by the Provider in clause 3.2 then the Additions will form part of the Services and the Client will be bound by the Terms and Conditions.
Fee and payment
1. In consideration of the Services to be provided by the Provider to the Client, the Client shall pay the Fee to the Provider on the Payment Terms. Fees are non-refundable.
2. If the Client subscribes to additional Services during the Term in accordance with clause 3 then the Fee will increase as agreed in writing between the Provider and the Client in substitution for the Fee set out in this Agreement.
3. All amounts stated are exclusive of VAT.
4. If payment of the Fee is not received by any due date, the Provider shall be entitled (without prejudice to any other right or remedy):
  1. to charge interest on the outstanding amount at the rate of 4% a year above the base lending rate of HSBC Bank plc, accruing daily;
  2. to require that the Client make a payment in advance of any Services not yet supplied; or
  3. to not provide any further Services.
5. Where the Client is liable for up to 3 payments of Services and the account has not been brought up to date on demand, the Provider shall have the entitlement to require that the balance of the Minimum Term is paid within 14 days with any outstanding payments and accrued interest.
6. The Client shall indemnify the Provider in respect of all legal costs and costs and expenses incurred in pursing any sums owed to the Provider further to this clause 4.
7. All payments shall quote the Provider’s invoice number.
The client’s obligations
1. The Client acknowledges and agrees that for the Provider to be able to provide the Services the Client shall:
  1. co-operate with the Provider as the Provider reasonably requires;
  2. provide to the Provider such information and documentation as the Provider reasonably requires;
  3. instruct the Client’s staff and agents to co-operate and assist the Provider.
2. The Provider may charge the Client for any additional reasonable costs and expenses incurred by the Provider caused by the Client’s instructions, failure to provide instructions, or failure to comply with clause 5.1.
3. The Client’s permission to use the Services is personal to them and their employees and non-transferable.
4. The Client’s acknowledge that the anonymised data collected via the Service will belong to the Provider absolutely
Protection of confidential information
1. Each Party (the Receiving Party) shall keep the confidential information of the other Party (the Supplying Party) confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party shall only use the confidential information of the Supplying Party for the Purpose and for performing the Receiving Party’s obligations under the Agreement. The Receiving Party shall inform its officers, employees and agents of the Receiving Party’s obligations under the provisions of this clause 6, and ensure that the Receiving Party’s officers, employees and agents meet the obligations.
2. The Client acknowledges that the Provider may process and store personal data in accordance with its Privacy Policy, which is compliant with UK GDPR and Data Protection Act 2018.
3. The obligations of clause 6.1 shall not apply to any information which:
  1. was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Supplying Party;
  2. is, or becomes, publicly available through no fault of the Receiving Party;
  3. is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
  4. was developed by the Receiving Party (or on its behalf) who had no direct access to, or use or knowledge of the confidential information supplied by the Supplying Party; or
  5. is required to be disclosed by a court order of competent jurisdiction.
4. This clause 6 shall survive termination of this Agreement
Warranties, liability and indemnities
1. Except in the case of death or personal injury caused by negligence, each Party’s liability under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever, shall not exceed the Fee paid to the Provider under this Agreement during the 12 months immediately preceding the date on which any claim arises.
2. Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill and included but not limited to loss of data, loss of anticipated savings, reputational damage or loss of contracts.
3. Each party shall indemnify and hold harmless the other party (the “Indemnified Party”) from and against all Claims and Losses arising from loss, damage, liability, injury to the Indemnified Party and third parties in relation to the infringement of third party intellectual property. Claims shall mean all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise); and Losses shall mean all losses including without limitation financial losses, damages, legal costs and other expenses of any nature whatsoever.
4. Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law. Nothing in this Agreement excludes liability for fraud.
Termination
1. This Agreement shall commence on the Commencement Date for the Minimum Term. The period commencing on the day after the Minimum Term ends is the Renewal Period. The Renewal Period shall be equal in length to the Minimum Period where the Minimum Term is 12 months or less. Where the Minimum Term is more than 12 months or a multiyear contract has been entered into, the Renewal Period shall be 12 months in length.
2. During the Renewal Period the Client shall be charged the Renewal Fee.
3. Unless notice to terminate has been given in accordance with clause 8.3 below then upon expiry of the initial Term (and any subsequent Term thereafter) this Agreement will automatically renew and the Renewal Period shall commence.
4. At least 90 days before the date set out clause 8.3, the Provider shall remind the Client by way of email (the Renewal Reminder) that the Minimum Term is approaching expiry and that the Renewal Period will commence. If there is no acknowledgement or reply to the Renewal Reminder, the Client agrees that the Provider may deem this to be acceptance to the Renewal Reminder terms and Renewal Period shall proceed as set out in this Agreement.
5. If the Client wishes to terminate this Agreement then they must give to the Provider at least 30 days notice in writing, such notice to expire before the end of the Minimum Term. Where the Client is in a Renewal Period and wishes to terminate this Agreement, at least 30 days’ notice in writing must be given, such notice to expire before the end of the Renewal Period.
6. Without prejudice to other remedies or rights, either Party may terminate this Agreement at any time by written notice to the other Party, the notice taking effect as specified in the notice:
  1. if the Other Party is in material breach of its obligations under this Agreement, and where a breach is capable of remedy within 14 days, the breach is not remedied within 14 days by the Other Party receiving notice which specifies the breach and requiring the breach to be remedied; or
  2. if the Other Party becomes insolvent or if an order is made or a resolution is passed for the winding up of the Other Party (other than voluntarily for the purpose of solvent amalgamation or re-construction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the Other Party’s assets or business, or if the Other Party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
7. Notwithstanding the provisions of this clause 7 the Provider may terminate this Agreement at any time and for any reason by giving to the Client at least 30 days notice in writing. In the event of Termination under this clause 8.5 the Client shall not be entitled to a refund of any Fees, whether prepaid or otherwise. All Fees at the time of payment are non-refundable.
8. Upon termination of this Agreement (regardless of how it terminates) the Client’s access to the Service shall be withdrawn.
9. In the event of early termination of this Agreement, the Client shall be liable for the remaining balance of the Fees due for the Minimum Term within 14 days.
Renewal Terms
1. Following the Minimum Period the Provider shall be entitled to review and increase the Fee for the Service provided to the Client (the Renewal Fee).
2. The Renewal Fee will be set out to the Client in the Renewal Reminder. In the event that the Client does not respond to the Renewal Reminder this shall be deemed as acceptance and agreement to the terms in the Renewal Reminder and the Client shall then be bound by these Terms and Conditions and any additional terms set out in the Renewal Reminder for the Renewal Period.
3. The Renewal Fee and shall be due in line with the Payment Terms, unless the Provider has set out in the Renewal Reminder any alternative payment arrangements.
4. Where the Client has contracted for multiple Services, the Renewal Fee shall only be applicable to those Services which have reached a Renewal Month, all other Fees shall continue at the contracted rates concurrently to the Renewal Fee.
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Client Obligations
1. The Client agrees to abide by the Terms and Conditions of use of the advocate program.
2. The Client agrees to act in accordance with the policies of the Provider including but not limited to the Provider’s privacy policy
General
1. Force majeure
  Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this Agreement by written notice to the other Party.
2. Amendments
  This Agreement may only be amended in writing agreed and signed by duly authorised representatives of the Parties.
3. Assignment
  Subject to the following sentence, neither Party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party. A Party may, however, assign and transfer all its rights and obligations under this agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.
4. Entire agreement
  This Agreement and the Order Form contains the whole agreement between the Parties and supersedes and replaces any prior written or oral agreements, representations or understandings between them. The parties confirm that they have not entered into this Agreement and/or Order Form on the basis of any representation that is not expressly incorporated into this Agreement and/or Order Form. Nothing in this Agreement and/or Order Form excludes liability for fraud. In the event of any conflict between this Agreement and the Order form the Agreement shall take precedence.
5. Waiver
  No failure or delay by either Party in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
6. Agency, partnership etc
  This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
7. Further assurance
  Each Party to this Agreement shall at the request and expense of the other or any of them execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
8. Severance
  If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
9. Announcements
  No Party shall issue or make any public announcement or disclose any information regarding this agreement unless prior to such public announcement or disclosure it furnishes all the Parties with a copy of such announcement or information and obtains the approval of such persons to its terms. However, no Party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.
10. Notices
  1. Any notice to be given under this Agreement shall be in writing and shall be sent by first class mail or air mail, or by facsimile or email (confirmed by first class mail or air mail), to the address of the relevant Party set out at the head of this Agreement, or to the relevant facsimile number set out below, or such other address or facsimile number as that Party may from time to time notify to the other Party in accordance with this clause 10.10.
  2. Notices sent as above shall be deemed to have been received 3 working days after the day of posting (in the case of inland first class mail), or 7 working days after the date of posting (in the case of air mail), or on the next working day after transmission (in the case of facsimile messages, but only if a transmission report is generated by the sender’s facsimile machine recording a message from the recipient’s facsimile machine, confirming that the facsimile was sent to the number indicated above and confirming that all pages were successfully transmitted).
  3. To prove notice was given it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and despatched and despatch of the transmission was confirmed and/or acknowledged as the case may be.
11. Law and jurisdiction
12. The validity, construction and performance of this Agreement shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the Parties submit.
13. Third Parties
  For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of this Agreement this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.
14. Data
  Data The Provider confirms that all data obtained and processed as a result of this contract shall be stored within the United Kingdom. The Client acknowledges that all anonymised and aggregated data collected through the Services shall remain the sole property of the Provider, and the Client grants the Provider an irrevocable, royalty free licence to use such anonymised data for analytics, service improvement and commercial purposes.

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