TERMS AND CONDITIONS
VANTIFY LIMITED PROPOSAL TERMS & CONDITIONS (CONSULTANCY) 2025V1
DEFINITIONS
Affiliate – any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.
Applicable Law – all applicable laws, subordinate legislation, statutes, and regulations from time to time in force, in each case as applicable to the parties’ respective obligations and the Services under the Proposal.
Assumptions – all and any information provided by the Client to Vantify for the purposes of the Services before or after the Proposal is agreed.
Business Day – a day (other than a Saturday, Sunday, or public holiday in England).
Business Hours – 9.00am to 5.30pm local UK time each Business Day.
Charges – all fees including Consultancy fees payable by the Client to Vantify as set out in the Proposal.
Client’s Suppliers – means any third-party supplier appointed by the Client to provide services at any of the Client’s Property or Properties or interact with Vantify software and services.
Confidential Information – information that is proprietary or confidential and: (a) is clearly labelled as such; and/or (b) is identified as Confidential Information; and/or (c) would appear to a reasonable person to be confidential and which relates to or is connected with the Proposal or relates to either party, and/or its affiliates or their respective businesses in whatever form (whether oral or written) which is received before, on or after the Proposal acceptance as a result of the negotiation or performance of the Proposal or any other information which contains or is derived from or otherwise reflects or is generated from such information, together with the existence and provisions of the Proposal and the negotiations relating to it.
Contract – means the legally binding agreement between Vantify and the Client for the supply of the Services in accordance with the Proposal and these Conditions (and any documents expressly incorporated by reference).
Data – all information supplied or created by the Client for use on the Vantify Platforms.
Deliverables – any written reports, assessments, or materials provided to the Client by Vantify as part of the Services, as described in the Specification or Proposal.
Documentation – the documentation provided by Vantify to the Client regarding the Services and/or Deliverables.
Force Majeure Event – means an event beyond the reasonable control of Vantify including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Vantify or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, or civil commotion, medical epidemic or pandemic, malicious damage, compliance with any law or governmental order, rule, regulation, or direction, accident, breakdown of plant or machinery, fire or flood, storm or extreme adverse weather conditions, or default of Client’s Suppliers or subcontractor.
Hosting Services – the services that Vantify provides to allow authorised Users to access and use the Services and Vantify Platforms, including hosting, set up and ongoing services.
Intellectual Property Rights – patents, rights to inventions, copyright and related rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, Confidential Information (including know-how and trade secrets), and all other Intellectual Property Rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Property – any building, site and/or area that the Services will be provided in respect of and shall include the term Properties.
Proposal – means the commercial agreement entered into between Vantify and the Client describing the scope of service, fees the Specification including these terms and conditions.
Services – the services, including the Deliverables, supplied by Vantify to the Client as set out in Specification.
Service Providers – the third-party service providers listed on Vantify Supply Chain from time to time.
Specification – the description or specification of the Services as provided in writing by Vantify to the Client or as set out in the Proposal and Specification.
UK Data Protection Laws – UK legislation and regulatory requirements in force from time to time in the UK relating to the use of personal data and the privacy of electronic communications, including the (i) Data Protection Act 2018 and any successor UK legislation, and (ii) retained EU law version of the General Data Protection Regulation ((EU) 2016/679).
Users – Client’s employees, agents and sub-contractors who are authorised by the Client to use the Services and the Documentation.
Vantify Supply Chain -the process of the Client being linked with a Service Provider for the Client to have the option of procuring services directly from that Service Provider.
VAT -has the meaning given to it in clause 6.4.
Vantify Platforms – as detailed in the Proposal.
Virus – anything or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1. BASIS OF CONTRACT
1.1 Any demos, descriptive matter or advertising issued by Vantify are issued or published for the sole purpose of giving an approximate idea of the Services. They shall not form part of the Contract or have any contractual force.
1.2 The Services are designed for use by businesses, not consumers. The Client warrants and represents that they are acquiring the right to access and use the Services for the purposes of a business and are not dealing with Vantify as a consumer and shall use the Services for its business purposes only.
1.3 These Conditions apply to the Proposal to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing.
1.4 The parties agree that these terms and conditions and the Proposal shall take precedence over any other terms and conditions, including but not limited to those contained in purchase orders, Client platforms, accreditation portals, or payment portals. Any such terms, whether presented before or after the execution of the Contract, shall not modify, amend, or supersede the terms herein unless expressly agreed in writing by Vantify and signed by both parties.
1.5 In the event of any conflict or inconsistency, the following order or precedence shall apply: (i) the Proposal; (ii) these Terms and Conditions; (iii) any other referenced document.
2. SUPPLY OF SERVICES
2.1 Vantify will use reasonable skill and care in the provision of the Services set out in Specification. Notwithstanding anything in the contrary contained in the Proposal, Vantify shall not be construed as owing any greater duty than the use of reasonable skill and care in accordance with the normal standards of its profession.
2.2 Vantify shall use all reasonable endeavours to meet any agreed performance dates, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
2.3 Vantify shall have the right to make any changes to the Services which are necessary to comply with any Applicable Law or safety requirement, or which do not materially affect the nature or quality of the Services, and Vantify shall notify the Client in any such event.
2.4 During the duration of the Contract, Vantify shall grant the Client access to the Vantify Platforms to obtain the data and documents created by or stored within Vantify for a period of 12 months from the date of the final risk assessment.
2.5 Vantify does not guarantee or warrant that the Vantify Platforms, or any content on it, will always be available, error free or be uninterrupted.
2.6 Vantify has the right to disable any logon credentials, user identification code, authentication token or password, whether chosen by the Client or allocated by Vantify, at any time, if in Vantify’s reasonable opinion, the Client fails to comply with any of its obligations.
2.7 Vantify shall provide the Services through the hosting partner chosen by Vantify in its sole discretion from time to time (“the Hosting Partner”).
3. CLIENT’S OBLIGATIONS
3.1 The Client shall:
3.1.1 provide Vantify with all necessary data and co-operation in relation to the Proposal; and all information reasonably requested by Vantify to enable Vantify to meet its’ obligations in the Proposal
3.1.2 obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;
3.1.3 use reasonable endeavours to promote Vantify’s platforms and Services;
3.1.4 comply with all Applicable Laws with respect to its activities contained in the Proposal;
3.1.5 carry out all other Client responsibilities set out in these terms and conditions or in the Proposal in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, Vantify may adjust any timetable or delivery schedule set out in the Proposal as reasonably necessary;
3.1.6 is responsible for making all arrangements necessary to access the Vantify Platforms;
3.1.7 is responsible for ensuring that all persons who access the Vantify Platforms for or on behalf of the Client are aware of these terms and conditions and any other applicable terms and conditions, and that they comply with them;
3.1.8 must treat the following as confidential if they are provided with logon credentials, a user identification code, an authentication token, password, or any other piece of information as part of our security procedures; and
3.1.9 appoint a Client Key Contact, such person to have authority to contractually bind the Client on all matters relating to the Proposal.
3.2 The Client warrants, undertakes and represents that the Assumptions are complete, accurate and current. The Client acknowledges and agrees that if the Assumptions are not complete, accurate and current in any way, it could result in a reduction of the accuracy the Services and/or Vantify’s performance of any of its obligations under the Proposal could be prevented or delayed.
3.3 In the event that the Assumptions are not complete, accurate and current and/or any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default) delays or prevents the performance of Vantify’s obligations under the Proposal then:
3.3.1 Vantify shall without limiting its other rights or remedies under these terms and conditions, have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations if and to the extent the Client Default prevents or delays Vantify’s performance of any of its obligations;
3.3.2 Vantify shall not be liable whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise for any costs or losses sustained or incurred by the Client arising directly or indirectly from Vantify’s failure or delay to perform any of its obligations as set out in this clause 3.2; and
3.3.3 the Client shall reimburse Vantify on written demand for any costs or losses sustained or incurred by Vantify arising directly or indirectly from the Client Default.
3.4 The Client and Vantify shall each adopt effective procedures conforming to best industry practice to ensure that no Virus, ransomware, spyware, adware, keyloggers or other malicious software will be introduced into the Vantify platforms or any other software of Vantify or the Client. If a party introduces any such malicious software, the parties will work together to immediately remove such malicious software from all infected equipment, database(s) and network(s) and will restore such equipment, database(s) and network(s) to their original state.
3.5 The Client will not access, store, distribute or transmit any Virus or any material during the course of the Client’s use of the Services that:
3.5.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.5.2 facilitates illegal activity;
3.5.3 depicts sexually explicit images;
3.5.4 promotes unlawful violence;
3.5.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
3.5.6 is otherwise illegal or causes damage or injury to any person or property,
and Vantify reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to any material that breaches the provisions of this clause 3.
3.6 The Client shall not, except as may be allowed by any Applicable Laws which are incapable of exclusion by agreement between the parties, and except to the extent expressly permitted under the Proposal:
3.6.1 copy, modify, make error corrections, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services, Vantify Platforms and/or Documentation (as applicable) in any form or media or by any means;
3.6.2 de-compile, reverse compile, disassemble, reverse engineer, decrypt, translate or modify all or part or otherwise reduce to human-perceivable form all or any part of the Services, Vantify Platforms and/or Documentation;
3.6.3 Use the Services, Vantify Platforms and/or Documentation other than for its business purposes;
3.6.4 access all or any part of the Services, Vantify Platforms and Documentation in order to build a product or service which competes with the Services and/or the Documentation;
3.6.5 use the Services, Vantify Platforms and/or Documentation to provide services to third parties;
3.6.6 license, sublicence, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services, Vantify Platforms and/or Documentation available to any third party except the Users, and/or
3.6.7 attempt to obtain, or assist third parties in obtaining, access to the Services, Vantify Platforms and/or Documentation, other than as provided under this clause 3.
3.7 The Client shall use its best efforts to prevent any unauthorised access to, or use of, the Services, Vantify Platforms and/or the Documentation and, in the event of any such unauthorised access or use, the Client will immediately notify Vantify.
3.8 The rights provided under these terms and conditions are granted to the Client only and shall not be considered granted to any Affiliate.
4. CLIENT DATA
4.1 The Client hereby grants Vantify an irrevocable royalty-free, non-exclusive, worldwide licence during the term of the Proposal services to use all Data for the purposes of the Proposal.
4.2 The Client warrants, undertakes and represents that:
4.2.1 all Data shall be true, complete, accurate and current;
4.2.2 that all Data is the property of the Client; and
4.2.3 the Client’s supply of Data to Vantify, and Vantify’s use of the Data for the purposes set out in the Proposal shall comply with all Applicable Laws.
4.3 The Client acknowledges that if the Data is not provided in accordance with clause 4.2 in any way, it will result in a reduction of the accuracy of the Services and Vantify Platforms. Vantify cannot be held responsible for inaccurate results produced by the Vantify Platforms if these were produced as a result of inaccurate data.
4.4 The Client shall own and shall continue to own all Intellectual Property Rights in any Data provided to Vantify by the Client for use on or for the Vantify Platforms.
4.5 Vantify shall follow its archiving procedures for the Client’s Data as set out in its back-up policy as may be notified to from time to time. In the event of any loss or damage to the Client’s Data, it’s sole and exclusive remedy against Vantify shall be for Vantify to use reasonable endeavours to restore the Client’s Data that is lost or damaged from the latest back-up maintained by Vantify in accordance with the archiving procedure described in its back-up policy. Vantify shall not be responsible for any loss, destruction, alteration or disclosure of the Client’s Data caused by any third party.
5. HELPDESK & SUPPORT
5.1 Vantify commits to providing technical support to the Client via the helpdesk during Business Hours, on a Business Day.
5.2 Each party shall notify the other party, via email, when it believes a problem requiring technical support has arisen. Vantify accepts emails for all support requests via enquiries@vantify.com
5.3 Helpdesk personnel will conduct business in English.
6. CHARGES AND PAYMENT
6.1 The Client shall pay the Charges set out in Proposal.
6.2 Vantify shall invoice and the Client shall pay the Charges in full and in cleared funds to a bank account nominated in writing by Vantify, as set out in these terms and conditions and Schedules but in any event, as follows:
6.2.1 Service fees for any consultancy Services or additional fees shall be invoiced upon completion or report distribution as relevant and shall be payable within 30 days of the invoice date.
6.3 Except as provided in Clause 6.2, the Client shall pay all invoices within 30 days of the invoice date. Time for payment by the Client shall be of the essence of the Proposal.
6.4 All amounts payable by the Client under the Proposal are exclusive of amounts in respect of value added tax chargeable for the time being (VAT) or any applicable taxes and duties or similar charges which shall be payable by the Client at the rate and in the manner from time to time prescribed by law. Where any taxable supply for VAT purposes is made under the Proposal by Vantify to the Client, the Client shall, on receipt of a valid VAT invoice from Vantify, pay to Vantify such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services. For the avoidance of doubt, if upon payment any withholding or deduction of any tax is required by law the Client shall, when making the payment to which the withholding or deduction relates, pay Vantify such additional amount as will ensure that Vantify receive the same total amount that Vantify would have received if no such withholding or deduction had been required.
6.5 If the Client fails to make any payment due to Vantify under the Proposal by the due date for payment, then the Client shall pay interest on the overdue amount at the rate of 8% per cent per annum above the current base lending rate of Vantify’s UK bankers from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
6.6 The Client shall pay all amounts due under the Proposal in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Vantify may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Vantify to the Client.
6.7 Vantify may, without liability to the Client, disable the Client’s password, account and access to all or part of the Services and Vantify shall be under no obligation to provide any or all of the Services to the Client or Property while the invoice(s) concerned remain unpaid.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Vantify shall own and shall continue to own all Intellectual Property Rights and all other rights in:
7.1.1 the Deliverables, except as set out in Specification;
7.1.2 the Vantify Platforms, including without limitation:
7.1.2.1 all source code comprised in it and any associated platform developed by Vantify or used to provide the Vantify Platforms including any mobile apps;
7.1.2.2 all amendments, updates and versions relating to it, even if developed specifically for the Client or in line with the Client’s instructions; and
7.1.2.3 all training and marketing materials produced by Vantify in connection with the Vantify Platforms;
7.1.3 all trademarks, logos, brands use by or in connection with the Vantify Platforms; and
7.1.4 all other works, software or material developed by Vantify prior to the Commencement Date or outside the scope of the Proposal.
7.2 Except as set out in the Proposal, none of the Intellectual Property Rights of each party referred above are or shall be deemed to be transferred, licensed, granted, assigned, or otherwise acquired by the other party of the Proposal.
7.3 Vantify hereby grants the Client a non-exclusive non-transferable licence of such Intellectual Property Rights of the modules and features defined in the Deliverables to such extent necessary to enable the Client to make reasonable use the Services as envisaged by the parties including:
7.3.1 the Client actioning Vantify’s recommendations contained within the Deliverables;
7.3.2 the Client’s internal management of their properties and assets to which the Deliverables and the Services related; and
7.3.3 the Client managing its health and safety risks in respect of their assets to which the Deliverables and the Services related.
7.4 The Client acknowledges that, in respect of any third-party Intellectual Property Rights, the Client’s use of any such Intellectual Property Rights is conditional on Vantify obtaining a written licence from the relevant licensor on such terms as will entitle Vantify to license such rights to the Client.
7.5 The Client shall not sub-license any licence granted under the Proposal to any other person without the prior written consent of Vantify.
7.6 Vantify shall have no liability for any use by the Client of any of the Deliverables for any purpose other than that for which it was prepared or provided by Vantify.
8. THIRD PARTY PROVIDERS
8.1 The Client acknowledges that the Services may enable or assist them to access the website content of, correspond with, and purchase products and services from, third parties via third party websites and that they do so solely at their own risk.
8.2 Vantify makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third party website, or any transactions completed, and any contract entered into by the Client, with any such third party.
8.3 Any contract entered into and any transaction completed via any third party website is between the Client and the relevant third party, and not Vantify. Vantify recommends that the Client refer to the third party’s website terms and conditions and privacy policy prior to using the relevant third party website. Vantify does not endorse or approve any third party website nor the content of any of the third party website made available via the Services.
8.4 For the avoidance of doubt, references to third parties in this clause 8 shall be deemed to include the Service Providers.
8.5 It is acknowledged and agreed that:
8.5.1 any contract for the provision of services and/or supply of goods from the Service Providers with the Client will be on the terms and conditions agreed between the Client and the Service Provider; and
8.5.2 all payments due to the Service Provider in respect of the works undertaken will be paid by the Client directly to the Service Provider and not through Vantify
8.5.3 The Client will set the verifications of their Service Providers and undertake to ensure a high level of compliance across their supply chain.
9. INSURANCE
9.1 Vantify shall maintain in force the same level of Insurance as set out below, provided that the same cover is available at commercially reasonable rates.
9.2 Professional indemnity – £2 million in the aggregate with a reputable insurance company.
9.3 Public liability – £5 million per occurrence with a reputable insurance company.
9.4 Employee liability – £10 million per occurrence with a reputable insurance company.
10. CONFIDENTIALITY
10.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, Specifications and report template formats, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other Confidential Information concerning the disclosing party’s business, its products and Services which the receiving party may obtain.
10.2 The receiving party shall only disclose such Confidential Information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the services outline in the Proposal, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Proposal.
10.3 The receiving party may also disclose such of the disclosing party’s Confidential Information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
10.4 Notwithstanding anything contained in this clause 10, the Client grants to Vantify the non-exclusive, non-transferable worldwide royalty-free right throughout the continuance of the Proposal and for a period of 2 years afterwards to use the Client’s logo in Vantify’s marketing of the Service (including on Vantify’s website) to indicate that the Client is (or, as appropriate, has been) a Client of Vantify in respect of the Service.
10.5 You acknowledge that details of the Services and the results of any performance tests of the Services, constitute Vantify’s Confidential Information.
10.6 This clause 11 shall survive termination of the Contract.
10.7 This clause 11 shall not apply to disclosure to insurers.
11. NON-SOLICITATION
14.1 The Client shall not directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of Vantify any person employed or engaged by them in the provision of the Services to the Client at any time during the term of the Proposal services or for a further period of 6 months thereafter other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff employed or engaged by Vantify.
12. LIMITATION OF LIABILITY
12.1 The restrictions on liability in this clause 12 apply to all liability of Vantify arising under or in connection with the Proposal including liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise arising under or in connection with the Proposal.
12.2 Except as expressly and specifically provided in these terms and conditions:
12.2.1 The Client assumes sole responsibility for results obtained from the use by the Client of the Services and/or any of the documentation, and for conclusions drawn from such use. Vantify shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Vantify by the Client in connection with the Services, or any actions taken by Vantify at the Client’s direction;
12.2.2 All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by Applicable Laws, excluded from these terms and conditions; and
12.2.3 Unless otherwise stated, the Services, Deliverables and any Documentation are provided to the Client on an “as is” basis.
12.3 Nothing in these Conditions shall limit or exclude Vantify’s liability for:
12.3.1 death or personal injury caused by its negligence, or the negligence of its employees, agents, or subcontractors;
12.3.2 fraud or fraudulent misrepresentation; or
12.3.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
12.4 Without prejudice to clause 12.3, Vantify shall not under any circumstances whatever, be liable to the Client, whether in contract, tort (including for negligence and breach of statutory duty howsoever arising) or restitution, or for or misrepresentation (whether innocent or negligent), or otherwise for:
12.4.1 any loss of profit (whether direct or indirect); goodwill, business, business opportunity, revenue, turnover, or reputation;
12.4.2 any loss or corruption (whether direct or indirect) of Data or information;
12.4.3 loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
12.4.4 special, indirect or consequential damage, whether foreseeable or not, suffered by the Client that arises under or in connection with the Proposal.
12.5 Without prejudice to clause 12.2.3 but subject to clause 12.4, Vantify’s total aggregate liability arising under or in connection with the Proposal shall be limited to the lower of (a) £500,000 (five hundred thousand pounds sterling) or (b) 200% of the overall Charges paid by the Client for the 12 month immediately preceding the event giving rise to the claim period in which the liability first arises.
12.6 Vantify’s liability under clause 12.5, shall be further limited to that proportion of loss which it would be just and equitable to require Vantify to pay having regard to Vantify’s responsibility for the same and on the basis that those other contractors, consultants and Client’s Suppliers who were engaged in connection with the project shall be deemed to have provided contractual undertakings on terms no less onerous than the Proposal to the Client in respect of the performance of their Services and shall be deemed to have paid to the Client such proportion as it would be just and equitable for them to pay having regard to the extent of their responsibility; and reduced proportionate to the duty of other contractors, consultants, Client’s Suppliers and Client’s to mitigate any such loss.
12.7 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these terms and conditions.
12.8 This clause 12 shall survive the Contract
13. TERMINATION
13.1 Without limiting its other rights or remedies, either party may terminate the Proposal with immediate effect by giving written notice to the other party if:
13.1.1 the other party commits a material breach of any term of the Proposal and (if such a breach is remediable) fails to remedy that breach within 28 days of that party being notified in writing to do so;
13.1.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
13.1.3 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
13.1.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
13.1.5 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
13.1.6 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
13.1.7 the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
13.1.8 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
13.1.9 any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.1.2 to clause 13.1.8 (inclusive);
13.1.10 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
13.1.11 the other party’s financial position deteriorates to such an extent that in Vantify’s opinion the Client’s capability to adequately fulfil its obligations under the Proposal has been placed in jeopardy.
13.2 Without limiting its other rights or remedies, Vantify may terminate the Proposal:
13.2.1 by giving the Client three months’ written notice; or
13.2.2 with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Proposal on the due date for payment and fails to pay all outstanding amounts within 30 days after being notified in writing to do so.
13.3 Without limiting its other rights or remedies, Vantify may suspend provision of the Services under the Proposal or any other contract between the Client and Vantify if the Client becomes subject to any of the events listed in clause 13.1.2 to clause 13.1.8, or Vantify reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under the Proposal on the due date for payment.
13.4 In the event that the Proposal is terminated prior to completion other than for the reason of (i) material breach of the Proposal by Vantify (ii) Vantify being subject to any insolvency event (as referred to in Clauses 13.1.2and 13.1.3 or (iii) an event of Force Majeure (pursuant to Clause 14), the Client will be liable to pay all Charges under the Proposal . For the avoidance of doubt the Client shall not be due any refund of Charges already paid to Vantify.
13.5 On expiry or termination of the Proposal:
13.5.1 for any reason or for a reason other than in clause 13.4, the Client shall immediately pay to Vantify all of Vantify’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Vantify shall submit an invoice, which shall be payable by the Client immediately on receipt;
13.5.2 Subject to the payment by the Client of the applicable amounts in this clause 13, Vantify shall (at the Client’s cost and expense) provide the Client with an export of Information held in Vantify Risk Manager in CSV format which will be made available to download via a secure shared location;
13.5.2.1 All of the uploaded files will also be downloaded to a .zip file or equivalent and made available for download within ten Business Days of the termination date.
13.5.2.2 Data storage charges may be incurred for any Data not retrieved within five Business Days of this Data being made available to the Client.
13.5.3 Vantify agrees that, if the Client informs Vantify that it has ceased or will be ceasing to act as the manager of a property on behalf of any Client, it will, if requested to do so by the Client, comply with the Data extraction obligations set out in clause 13.5.2 subject to the payment of all Charges due under this Proposal.
13.5.4 the accrued rights, remedies, obligations, and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Proposal which existed at or before the date of termination or expiry; and
13.5.5 clauses which expressly or by implication survive termination shall continue in full force and effect.
14. FORCE MAJEURE
14.1 If Vantify is prevented, hindered or delayed in or from performing any of its obligations under the Proposal by a Force Majeure Event, it shall not be in breach of these terms & conditions or otherwise liable for any such failure or delay in the performance of such obligations.
14.2 If the Force Majeure Event prevents, hinders or delays Vantify from providing any of the Services for more than 90 days, Vantify shall, without limiting its other rights or remedies, have the right to terminate the supply of services immediately by giving written notice to the Client.
15. DATA PROTECTION T
15.1 Each party agrees to comply, at its own expense, with UK Data Protection Law.
15.2 To the extent that the Client shares personal data with Vantify in the course of the Services, Vantify shall process such data as an independent controller solely for the purposes of providing the Services, managing the client relationship and complying with its legal obligations
15.3 No personal data will be processed by Vantify on behalf of the Client as a processor. Accordingly, no separate data processing agreement is required in respect of the Services.
16. ASSIGNMENT AND OTHER DEALINGS
16.1 Vantify may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Proposal and may subcontract or delegate in any manner any or all of its obligations under the Proposal to any third party or agent.
16.2 The Client shall not, without the prior written consent of Vantify, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Proposal.
17. GENERAL
17.1 If any provision or part-provision of these terms and conditions is or becomes invalid, illegal, or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the terms and conditions. If any provision or part-provision of the terms and conditions is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
17.2 A waiver of any right under the terms and conditions or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under theses terms and conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17.3 Nothing in these terms and conditions is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
17.4 The Proposal, together with these terms and conditions constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter. The terms and conditions are incorporated by reference into the Proposal. Each party acknowledges that in accepting the Proposal it shall also be accepting these terms and conditions, and it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Proposal or these terms and conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Proposal and terms and conditions. Nothing in this clause shall exclude liability for fraud or fraudulent misrepresentation.
17.5 Except as set out in these terms and conditions, no variation of the Proposal, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by Vantify.
17.6 Except as expressly provided in the Proposal and terms and conditions, the rights and remedies provided under these terms and conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
17.7 Vantify shall be entitled to vary the functionality of Services and the Vantify Platforms at any time provided that no variation will adversely affect the then existing functionality of the Services.
18. INTERPRETATION
18.1 In these terms and conditions, a reference to a party includes its successors or permitted assigns.
18.2 In these terms and conditions, a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
18.3 In these terms and conditions, any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
18.4 In these terms and conditions, a reference to writing or written includes e-mails.
19. THIRD PARTY RIGHTS
19.1 These terms and conditions do not confer any rights on any person or party (other than the parties to the Proposal and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third parties) Act 1999.
20. GOVERNING LAW AND JURISDICTION
20.1 The Proposal, these terms and conditions, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
20.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Proposal and these terms and conditions or its subject matter or formation (including non-contractual disputes or claims).
21. NOTICES
21.1 Any notice required to be given under these terms and conditions shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post or email to the other party at the address specified in the Proposal, , or such other address as may have been notified in writing by that party to the other party for such purposes.
21.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in Business Hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
21.3 This clause 21 shall not apply to the service of proceedings or other documents in legal proceedings.