1. Definitions

1.1 - In these Terms the following definitions will have the following meanings:

Agreement - these Terms and the Order Form;

Client - the Client named as such on the Order Form;

Client Material - any material provided by the Client to GeminiOne™ for use in connection with the provision of the Services including, without limitation, information, tapes, documents and electronic mails;

Deliverables - any materials and/ or products created, generated and/ or produced by or on behalf of GeminiOne™ in the performance of the Services (including, without limitation, any reports, letters, spreadsheets, data, press releases and promotional materials);

Delivery - has the meaning prescribed to in clause 4;

Fees - the fees specified on the Order Form;

Force Majeure - has the meaning prescribed to in clause 9;

GeminiOne™ - Eunice Tawney trading as GeminiOne™ Secretarial Services whose trading office is at Unit 10, the Chamber, Business Competitiveness Centre, Kimpton Road, Luton, Bedfordshire, LU2 0SX;

GeminiOne™ Premises - Unit 10, the Chamber, Business Competitiveness Centre, Kimpton Road, Luton, Bedfordshire, LU2 0SX;

IP Rights - any copyright, patent, registered design, design rights, utility models, trade marks, trade secrets, know how, database rights, confidential information or any other registered or unregistered intellectual property rights of whatever nature subsisting anywhere in the world;

Normal Working Hours - 9am to 1pm and 2pm to 5pm Monday to Friday, except on days which are bank holidays in England;

Order Form - the document setting out GeminiOne’s offer to supply the Services to the Client;

Services - the services to be provided by GeminiOne™ to the Client as set out on the Order Form;

Special Conditions - the special conditions set out on the Order Form;

Terms - the terms and conditions set out in this document;

1.2 - In the Agreement:

1.2.1 - the singular includes the plural and vice versa;

1.2.2 - references to gender include references to all genders;

1.2.3 - unless otherwise stated, references to clauses are to clauses of the Agreement;

1.2.4 - the clause headings are for reference only and will not affect the construction or interpretation of the Agreement; and

1.2.5 - references to statutes, any statutory instrument, regulation or order will be construed as a reference to such statute, statutory instrument, regulation or order as amended or re-enacted from time to time.

1.3 - All agreements for the supply of Services by GeminiOne™ are made upon and subject to these Terms so far as they are not inconsistent with any terms on the face of the Order Form and (except for such terms stipulated on the Order Form) to the exclusion of any other terms (including any terms which the Client purports to apply under any purchase order or other document). Each Order Form completed by GeminiOne™ will be deemed to be an offer to supply the Services as stated in the Order Form subject to these Terms. Any offer is valid for a period of 7 days from the date of the Order Form, provided that GeminiOne™ has not previously withdrawn it.

1.4 - The Client will be deemed to have accepted GeminiOne’s offer upon GeminiOne’s receipt of the Order Form signed by the Client or the commencement of the Services by GeminiOne™ , whichever is the earlier.

2. Services

2.1 - GeminiOne™ agrees to provide the Services on the terms of the Agreement.

2.2 - GeminiOne™ agrees to provide the Services using reasonable care, skill and diligence.

3. Client Obligations

3.1 - The Client will co-operate with GeminiOne™ (including its employees, agents and sub-contractors) in all matters relating to the provision of the Services.

3.2 - The Client will provide, in a timely manner, such information as GeminiOne™ may request (including, without limitation, the Client Materials), and the Client will ensure that such information is accurate in all material respects.

3.3 - If GeminiOne's™ performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Client, its employees, agents or sub-contractors, GeminiOne™ will not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.

3.4 - The Client will indemnify GeminiOne™ forthwith upon demand in respect of any loss, damage, cost and/ or expense suffered or incurred by GeminiOne™ directly or indirectly as a result of any breach by the Client of its obligations set out in the Agreement.

3.5 - The Client will indemnify GeminiOne™ forthwith upon demand in respect of any loss, damage, cost and/ or expense suffered or incurred by GeminiOne™ directly or indirectly as a result of a third party claiming that GeminiOne's™ use of the Client Material infringes the rights of such third party.

3.6 - The Client will obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services.

4. Delivery

4.1 - The parties will agree on the Order Form the method by which the Deliverables will be received by the Client (“Delivery”).

4.2 Any date specified by GeminiOne™ for Delivery of the Deliverables is intended to be an estimate and time for Delivery shall not be made of the essence by notice.

4.3 - Where Delivery involves GeminiOne™ arranging for the Deliverables to be delivered to the Client address indicated on the Order Form, GeminiOne™ will not be liable for any non-delivery of the Deliverables (even if caused by GeminiOne’s negligence) unless the Client gives written notice of the non-delivery within 7 days of the date when the Deliverables would in the ordinary course of events have been received.

4.4 - If for any reason GeminiOne™ is unable to deliver the Deliverables on time because the Client, the Client’s agents or the Client’s contractors is not present at the Client address indicated on the Order Form, or has not provided appropriate instructions, documents, licences or authorisations, or any other act or omission by the Client, the Client’s agents or the Client’s contractors:

4.4.1 - Delivery of the Deliverables shall be deemed to have taken place; and

4.4.2 - GeminiOne™ may store the Deliverables until delivery, whereupon the Client shall be liable for all related costs and expenses (including, without limitation, re-delivery and storage).

4.5 - Where Delivery involves GeminiOne™ sending the Deliverables by electronic mail, GeminiOne™ will not be liable for any non-delivery of the Deliverables (even if caused by GeminiOne’s negligence) unless the Client gives written notice of the non-delivery within 7 days of the date when the Deliverables would in the ordinary course of events have been received.

4.6 - If for any reason GeminiOne™ is unable to deliver the Deliverables by electronic mail on time because:

4.6.1 - the Client, the Client’s agents or the Client’s contractors has not provided appropriate instructions (including, without limitation, the correct electronic mail address); or

4.6.2 - there is a problem with the Client’s Information Technology system which prevents the receipt of incoming electronic mail communications; or

4.6.3 - of any other act or omission by the Client, the Client’s agents or the Client’s contractors,

Delivery of the Deliverables shall be deemed to have taken place.

4.7 - Where Delivery involves the Client collecting the Deliverables from the GeminiOne™ Premises, collection shall be during Normal Working Hours.

4.8 - Any liability of GeminiOne™ for non-delivery of the Deliverables will be limited to GeminiOne™ (at its sole discretion) replacing the Deliverables within a reasonable time or issuing a credit note on a pro rata basis against any invoice raised for such the Services pursuant to which the Deliverables are to be delivered.

5. Payment

5.1 - GeminiOne™ will invoice the Fees to the Client upon Delivery of the Deliverables.

5.2 - The Client will pay each invoice submitted to it by GeminiOne™ within 30 days of the invoice date.

5.3 - The Fees will exclude all disbursements (including without limitation photocopying charges and the cost of any materials) and out of pocket expenses incurred by GeminiOne™ in connection with the provision of the Services. Such expenses shall be invoiced by GeminiOne™ and the Client shall pay such sums in accordance with these Terms.

5.4 - Without prejudice to any other right or remedy that it may have, if the Client fails to pay GeminiOne™ any sums due on the due date, GeminiOne™ may charge interest on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment.

5.5 - GeminiOne™ reserves the right to immediately suspend provision of the Services if any sums payable by the Client under the Agreement or any other agreement between GeminiOne™ and the Client are not received by GeminiOne™ by the due date.

5.6 - The Client will make all payments due to GeminiOne™ in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Client has a valid court order requiring an amount equal to such deduction to be paid by GeminiOne™ to the Client.

6. Limitation of Liability

6.1 - Save as expressly specified in the Agreement, all terms, conditions, warranties, representations, or guarantees whether express or implied relating to the performance, quality or fitness for purpose of any part of the goods and/ or services provided by GeminiOne™ under the Agreement are, to the fullest extent permitted by law, hereby excluded.

6.2 - Neither party excludes or limits liability to the other party for death or personal injury caused by that party’s negligence, or liability for fraudulent misrepresentation, or any breach of any obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982.

6.3 - Subject to clauses 6.2 and 6.4, the entire financial liability of GeminiOne™ in respect of breaches of the Agreement or of any other duty to the Client or for negligence in connection with the subject matter of the Agreement will be limited to an amount equal to the Fees paid by the Client to GeminiOne™ under the terms of the Agreement.

6.4 - Subject to clause 6.2, in no event will GeminiOne™ be liable to the Client for any of the following however and whenever arising:

6.4.1 - loss of profits; or
6.4.2 - loss of business; or
6.4.3 - loss of revenue; or
6.4.4 - loss of data; or
6.4.5 - loss of goodwill; or
6.4.6 - loss of anticipated savings; or
6.4.7 - any special, indirect, consequential or pure economic loss, damage, costs or expense.

7. IP Rights

7.1 - The parties acknowledge that the IP Rights and all other rights in the Deliverables will belong to GeminiOne™ and/ or the relevant owner unless otherwise specified in the Special Conditions.

7.2 - GeminiOne™ hereby grants the Client a non-exclusive licence to use the Deliverables supplied by GeminiOne™ to the Client to such extent as is necessary to enable the Client to make reasonable use of the Deliverables and the Services unless otherwise specified in the Special Conditions.

7.3 - The Client hereby grants GeminiOne™ a non-exclusive licence to use the Client Materials supplied by the Client to such extent as is necessary to enable GeminiOne™ to produce the Deliverables and carry out the Services.

7.4 - GeminiOne™ makes no representation or warranty as to the validity or enforceability of the IP Rights in the Deliverables nor as to whether the same infringe any IP Rights of third parties.

8. Termination

8.1 - Notwithstanding any other provisions herein contained, and without prejudice to any other rights that the parties may have, GeminiOne™ may forthwith terminate the Agreement by written notice to the other if the Client:

8.1.1 - is in material breach of a provision of the Agreement and fails to remedy such breach (if capable of remedy) within 30 days of having received written notice of breach; or

8.1.2 - (being an individual) has a statutory demand or bankruptcy order being made against him or makes an arrangement or composition with creditors or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) enters into administration (whether out of court or otherwise), receivership, liquidation, a formal arrangement with its creditors or analogous proceedings or procedure, or is otherwise insolvent or ceases or threatens to cease to trade.

8.2 - Termination of the Agreement will be without prejudice to any accrued rights or obligations of the parties.

8.3 - On termination of the Agreement for any reason, the Client shall immediately pay to GeminiOne™ all of GeminiOne's™ outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, GeminiOne™ may submit an invoice, which shall be payable immediately on receipt.

9. Force Majeure

9.1 - Neither party will be liable for any failure or delay in the performance of the Agreement which is caused by circumstances beyond the reasonable control of the defaulting party including without limitation acts of God, war or national emergency, acts of terrorism, fire, explosion and flood (“Force Majeure”), provided always that the defaulting party uses all reasonable endeavours (but without an obligation to incur cost) to minimise the period of disruption caused by the Force Majeure.

9.2 - If either party is prevented from performance of its obligations by reason of Force Majeure for a continuous period in excess of 3 months, the other party may terminate the Agreement forthwith on service of written notice upon the party so prevented, in which case neither party will have any liability to the other except that rights and liabilities which accrued prior to such termination will continue to subsist.

10. Confidentiality

10.1 - The parties will use reasonable endeavours to keep confidential (and ensure that their employees and agents keep confidential) all information received by them relating to any part of the business and affairs of the other party provided that these obligations do not apply to information which is:

10.1.1 - or becomes publicly known through no wrongful act of the party concerned;

10.1.2 - required to be disclosed by an order of law or other binding authority; or

10.1.3 - disclosed to any adviser of either party bound by a professional duty of confidentiality.

11. Data Protection

Definitions used in this clause 11 will have the same meanings as in the Data Protection Act 1998. GeminiOne™ will process any "personal data" in accordance with its Privacy Policy, a copy of which can be accessed at the website www.geminione.co.uk.

12. General

12.1 - The Agreement contains the whole agreement between the parties in respect of the subject matter and supersedes any prior written or oral agreement between them relating to it and the parties confirm that they have not entered into the Agreement on the basis of any representations that are not expressly incorporated in the Agreement. Nothing in the Agreement will, however, operate to limit or exclude any liability for fraud.

12.2 - No amendment to the Agreement will be binding unless made in writing and signed by both parties.

12.3 - The Client will not assign, charge or otherwise transfer to a third party any of its rights or obligations hereunder without the prior written consent of GeminiOne™ . GeminiOne™ may assign, transfer or sub-contract any of its rights or obligations hereunder without the prior written consent of the Client.

12.4 - No waiver of any breach of any of the parties’ obligations hereunder will represent a waiver of the waiving party’s rights hereunder or of any subsequent breach.

12.5 - The parties respectively will and will procure that any other necessary party will execute all such documents and do all acts and things as may reasonably be required on or subsequent to completion of the Agreement for securing each of the obligations of the parties under the Agreement.

12.6 - None of the provisions of the Agreement are intended to or will operate to confer any benefit pursuant to the Contracts (Rights of Third Parties) Act 1999 on a person who is not named as a party to the Agreement.

12.7 - Any notice to effect suspension or termination of the whole or any part of the Agreement:

12.7.1 - will be made in writing and either delivered personally or sent by recorded delivery to the party to whom the notice is addressed at its address as set out in the Agreement or such other address as a party may specify by notice in writing to the other parties;

12.7.2 - in the absence of evidence of earlier receipt will be deemed to have been duly given:
(i) if delivered personally, when left at the address referred to in clause 12.7.1; or
(ii) if sent by recorded delivery, at the time recorded by the delivery agent.

12.8 - For the avoidance of doubt electronic mail will be deemed to be “writing” for the purpose of the Agreement but this will not prejudice the express requirements for delivery of notices under clause 12.7.

12.9 - If any provision of the Agreement is held to be void or unenforceable in whole or in part, the Agreement will continue to be valid as to the other provisions thereof and the remainder of the affected provision.

12.10 - The Agreement will be binding on and will continue for the benefit of the permitted successors and permitted assigns (as the case may be) of each of the parties.

12.11 - All provisions of the Agreement will so far as they are capable of being performed and observed continue in full force and effect notwithstanding any expiry or earlier termination.

13. Applicable Law

The Agreement will be governed by and construed in accordance with the laws of England and Wales and each party to the Agreement submits to the exclusive jurisdiction of the English courts.