MEMBERSHIP TERMS AND CONDITIONS
The following set out terms and conditions that determine how your membership operates and govern how we will provide Services to you.
1. INTERPRETATION
The following definitions and rules of interpretation apply in this agreement.
1.1. Definitions:
Annual Subscription Fee means an annual fee paid by you to be a Member of the Forum which shall be calculated by us and notified to you each year;
Business Day a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
Commencement Date has the meaning given in clause 2.1 (Commencement and Duration);
Data Protection Legislation up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter (i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998;
Deliverables all Documents developed by us in relation to the Services provided under this agreement in any form;
Forum means the national membership community for the shared services sector;
Group in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company;
GDPR General Data Protection Regulation ((EU) 2016/679);
Intellectual Property Rights patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, 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;
Joining Fee means a one-off joining fee calculated by us and notified to you and once paid in conjunction with the Annual Subscription Fee, you shall become a Member of the Forum;
Member means you upon payment of the Membership Fees;
Membership Fees means the Joining Fees and Annual Subscription Fee;
Membership Year means the period of 1 January to the following 31 December each year;
Services has the meaning given in clause 3.7 (Fees, Payment & Services);
VAT value added tax or any equivalent tax chargeable in the UK;
1.2. Clause and paragraph headings shall not affect the interpretation of this agreement.
1.3. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5. A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.
1.6. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.9. A reference to writing or written includes email.
1.10. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.11. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. COMMENCEMENT & DURATION
2.1. This agreement shall commence on the date that the Joining Fee and initial Annual Subscription Fee is paid (“Commencement Date”).
2.2. Unless terminated earlier in accordance with clause 11 (Termination), this agreement shall continue until the 31 December of the Membership Year in which the Joining Fee was paid (“Initial Term”) and after expiry of the Initial Term shall automatically extend for rolling periods of one year, subject to payment of the Annual Subscription Fee.
2.3. Shortly before the end of the Membership Year, we shall send you notification of the renewal of your membership for the forthcoming Membership Year and the relevant Annual Subscription Fee.
2.4. This agreement shall automatically terminate if the relevant Annual Subscription Fee is not paid before the start of the following Membership Year for which payment of the Annual Subscription Fee is due.
3. FEES, PAYMENT & SERVICES
3.1. You shall pay a one-off Joining Fee and an Annual Subscription Fee to be a Member of the Forum.
3.2. The Joining Fee and Annual Subscription Fees are exclusive of amounts in respect of VAT. You shall, on receipt of a valid VAT invoice, pay to us any additional amounts in respect of VAT.
3.3. The Membership Fees will be subject to annual review by us and notified to you each Membership Year.
3.4. Payment of the Joining Fee and first Annual Subscription Fee shall be paid prior to commencement of this agreement. Each additional Annual Subscription Fee shall be paid annually in advance of the following Membership Year.
3.5. We shall invoice you for the Membership Fees when they become due.
3.6. Payment of the Membership Fees must be:
3.6.1. paid within 30 days of receipt of the invoice; and
3.6.2. in full and in cleared funds to the bank account nominated in writing by the us.
3.7. Upon payment of the Membership Fees in full, the Member shall be entitled to receive benefits which shall be communicated to it upon each renewal (“Services”).
4. SET-OFF
4.1. All amounts due under this agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5. FORCE MAJEURE
5.1. Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
5.2. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this agreement by giving 30 days' written notice to the affected party.
6. ASSIGNMENT AND OTHER DEALINGS
6.1. This agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
7. LIMITATION OF LIABILITY
7.1. Nothing in this agreement shall limit or exclude our liability for:
7.1.1. death or personal injury caused by our negligence or the negligence of our employees, agents, or subcontractors (as applicable); or
7.1.2. fraud or fraudulent misrepresentation.
7.2. Subject to clause 7.1 above:
7.2.1. we shall under no circumstances whatsoever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with this agreement; and
7.2.2. our total liability to you in respect of all other losses arising under or in connection with this agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total Membership Fees paid in accordance with this agreement.
8. DATA PROTECTION
8.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
8.2. Both parties acknowledge that for the purposes of the Data Protection Legislation, you are the Data Controller and we are the Data Processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
8.3. Without prejudice to the generality of Clause 8.1, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to us for the duration and purposes of this agreement.
8.4. Without prejudice to the generality of Clause 8.1, we shall, in relation to any Personal Data processed in connection with the performance by us of our obligations under this agreement:
8.4.1. process that Personal Data only on your written instructions unless we are required by the laws of any member of the European Union to process Personal Data;
8.4.2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by you, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
8.4.3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
8.4.4. not transfer any Personal Data outside of the European Economic Area unless your prior written consent has been obtained and the following conditions are fulfilled:
8.4.4.1. either party has provided appropriate safeguards in relation to the transfer;
8.4.4.2. the data subject has enforceable rights and effective legal remedies;
8.4.4.3. we comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
8.4.4.4. we comply with reasonable instructions notified to it in advance by you with respect to the processing of the Personal Data;
8.4.5. notify you without undue delay on becoming aware of a Personal Data breach;
8.4.6. at your written direction, delete or return Personal Data and copies thereof to you on termination of the agreement unless required by Data Protection Legislation to store the Personal Data; and
8.4.7. maintain complete and accurate records and information to demonstrate our compliance with this Clause 8.
9. INTELLECTUAL PROPERTY
9.1. In relation to the Deliverables:
9.1.1. the we shall retain ownership of all Intellectual Property Rights in the Deliverables;
9.1.2. we grant to you, or shall procure the direct grant to you of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables for the purpose of receiving and using the Services provided under this agreement and the Deliverables in its business.
9.2. Neither party will use the other’s logo, artwork, text or any other protected images without written permission.
10. CONFIDENTIALITY
10.1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by Clause 10.2.
10.2. Each party may disclose the other party's confidential information:
10.2.1. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 10; and
10.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3. No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
11. TERMINATION
11.1. Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
11.1.1. the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
11.1.2. 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 as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
11.1.3. 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 any of its creditors other than (being 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;
11.1.4. 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 the other party (being a company, limited liability partnership or partnership);
11.1.5. an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company);
11.1.6. 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;
11.1.7. a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
11.1.8. 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 the other party's assets and such attachment or process is not discharged within 14 days; or
11.1.9. 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 11.1.1 to clause 11.1.8 (inclusive).
11.2. No refund of Membership Fees shall be due to you if this agreement is terminated part way through the year in accordance with clause 11.1.1 to clause 11.1.9.
12. ENTIRE AGREEMENT
12.1. This agreement 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.
12.2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
13. VARIATION
13.1. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14. WAIVER
14.1. No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the
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.
15. SEVERANCE
15.1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. 15.2. If any provision or part-provision of this agreement is deemed deleted under Clause 15.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
16. NO PARTNERSHIP OR AGENCY
16.1. Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
16.2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
17. NOTICES
17.1. Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
17.1.1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
17.1.2. sent by email to the address specified by each party.
17.2. Any notice shall be deemed to have been received:
17.2.1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
17.2.2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
17.2.3. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this Clause 17.2.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
17.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
18. THIRD PARTY RIGHTS
18.1. Unless expressly stated otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
18.2. The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.
19. GOVERNING LAW & JURISDICTION
19.1. This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
19.2. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation
