TERMS AND CONDITIONS
Terms and conditions for the supply of BFPP Member services
THE FOLLOWING DEFINITIONS AND RULES OF INTERPRETATION APPLY IN THESE CONDITIONS.
Analytical Data: the data provided to the Member via the Services and in accordance with the Documentation detailing the Authorised Users use of the Services.
Authorised Users: the employees, agents and independent contractors of the Member who are authorised by the Member to use the Services and the Documentation.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Member for the supply of the Services in accordance with Clause 5 (Charges and payment).
Commencement Date: has the meaning given in Clause 2.2.
Conditions: these terms and conditions as amended from time to time.
Contract: the contract between the Supplier and the Member for the supply of Services in accordance with these Conditions.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Documentation: the document made available to the Member by the Supplier which sets out a description of the Services and the user instructions for the Services.
Initial Subscription Term: the initial term of this agreement (12 months, unless otherwise expressly agreed in writing between the parties).
Member: the organisation, business or firm who purchases Services from the Supplier.
Member Data: the data inputted by the Member, Authorised Users, or the Supplier on the Member's behalf for the purpose of using the Services or facilitating the Member's use of the Services.
Member Default: has the meaning set out in Clause 4.2.
Data Subject: an individual who is the subject of Personal Data.
Deliverables: a learning tool and related best practices policies, together with associated services, which are made available to subscribers via the internet on a subscription basis, produced by the Supplier for the Member for the purpose of developing a basic level of awareness of cyber security and helping to improve best practice within a company, firm or organisation.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, 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.
Order: the Member’s order for Services as set out in the Member’s purchase order form.
Personal Data: has the meaning set out in section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, in respect of which the Member is the Data Controller and in relation to which the Supplier is providing Services under the Contract.
Processing and process: have the meaning set out section 1(1) of the Data Protection Act 1998.
Renewal Period: this agreement shall be automatically renewed for successive periods of 12 months upon expiration of the Initial Subscription Term (each being a Renewal Period) unless either party notifies the other of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case the agreement shall terminate upon the expiry of the respective period or term.
Services: the services, including the Deliverables, supplied by the Supplier to the Member as set out in the Specification.
Software: the online software applications provided by the Supplier as part of the Services.
Specification: the description or specification of the Services provided in writing by the Supplier to the Member.
Subscription Term: being the Initial Subscription Term, together with any subsequent Renewal Periods.
Supplier: Whittingham Limited (trading as the Business Fraud Prevention Partnership) incorporated and registered in England and Wales with company number 09941208 whose registered office is at 76 Manchester Road, Denton, Manchester M34 3PS.
Supplier Materials: has the meaning set out in Clause 4.1(h).
User Subscriptions: the user subscriptions purchased by the Member as per the online pricing of the Supplier (or as otherwise agreed in writing) which entitles the Member’s Authorised Users to access and use the Services and Documentation in accordance with these terms.
1.3 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.4 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.
1.5 A reference to writing or written includes fax and email.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Member to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Member seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. SUPPLY OF SERVICES
3.1 The Supplier shall supply the Services to the Member in accordance with the Specification in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified between the parties, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Member in any such event.
3.4 The Supplier shall use commercially reasonable endeavours to provide the Services in accordance with the Service Level Agreement.
3.5 The Supplier shall not be responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Member acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
3.6 The Supplier does not warrant that the Member's use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Member through the Services will meet the Member's requirements.
4. MEMBER’S OBLIGATIONS
4.1 The Member shall:
(a) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Member’s premises, office accommodation and other facilities as reasonably required by the Supplier;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) prepare the Member’s premises for the supply of the Services;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(g) comply with all applicable laws, including health and safety laws;
(h) keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Member’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation;
4.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Member or failure by the Member to perform any relevant obligation (Member Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Member remedies the Member Default, and to rely on the Member Default to relieve it from the performance of any of its obligations in each case to the extent the Member Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Member arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this Clause 4.2; and
(c) the Member shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Member Default.
5. CHARGES AND PAYMENT
5.1 The Member shall pay the Supplier for the Services, which is on a Subscription basis for the number User Subscriptions in accordance with these terms.
(a) the Charges shall be calculated in accordance with the Supplier’s employee category rates, as displayed on its website;
(b) the Member will pay the Charges payable in respect of the Initial Subscription Term, either via Direct Debit, Standing Order or via the Supplier’s online payment facility;
(c) the Supplier shall be entitled to charge an additional rate for each part day or for any time worked by individuals whom it engages to provide additional or bespoke services; and
(d) the Supplier shall be entitled to charge the Member for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
5.2 The Supplier reserves the right to increase the Charges at the start of each Renewal Period upon 60 days’ prior notice to the Member and these terms shall be deemed to have been amended accordingly.
5.3 The Supplier shall invoice the Member monthly in arrears.
5.4 The Member shall pay each invoice submitted by the Supplier as detailed under clause 5.1(b) or, in any event:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
5.5 All amounts payable by the Member under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Member, the Member shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier 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.
5.6 If the Member fails to make a payment due to the Supplier under the Contract by the due date, then;
(a) without limiting the Supplier’s remedies under Clause 9, the Member shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 5.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
(b) the Supplier may, without liability to the Member, disable the Member’s passwords, accounts and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.
5.7 All amounts due under the Contract shall be paid in full in pounds sterling without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law) and are non-cancellable and non-refundable.
6. MEMBERSHIP SUBSCRIPTIONS
6.1 Subject to the Member paying the Supplier for the Services in accordance with clause 5, the Supplier grants the Member a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and Documentation during the Subscription Term solely for the Member’s internal business operations.
6.2 The Member undertakes that:
(a) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User;
(b) each Authorised User shall keep a secure password for his/her use of the Services and Documentation, with each Authorised User ensuring that his/her password remains confidential;
(c) it will update the Supplier with an up to date list of current Authorised Users when requiring removal/addition of Authorised Users, or provide such list to the Supplier within 5 Business Days of the Supplier’s written request
6.3 The Member shall not:
(a) attempt to disassemble, reverse compile, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or materials used as part of the Service;
(b) access or attempt to access any or all parts of the Services and Documentation in order to build a product or service which either competes directly, or indirectly with the Services and/or Documentation or for any other purpose whatsoever;
(c) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation
6.4 The Member shall use all reasonable endeavours to prevent the form of unauthorised access whether in whole or in part, or use of, the Services or Documentation. In the event of any such access or use, the Member shall notify the Supplier immediately.
7. ADDITIONAL USER SUBSCRIPTIONS
7.1 From time to time, the Member may, during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the employee category rates, as displayed on its website. Upon doing so, the Supplier shall grant additional access to such additional Authorised Users within 5 Business Days.
7.2 In the event that the Supplier approves the Member’s request to purchase Additional User Subscriptions, the Member shall ensure that Charges and Payments are amended to ensure payment can continued to be made by standing order, direct debit of via an amended order on the Supplier’s website. Where such additional User Subscriptions are purchased by the Member part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
8. INTELLECTUAL PROPERTY RIGHTS
8.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Member) shall be owned by the Supplier.
8.2 Except as expressly stated herein, this agreement does not grant the Member any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
8.3 The Member shall not sub-license, assign or otherwise transfer the rights granted in Clause 8.2.
9. DATA PROTECTION AND DATA PROCESSING
9.1 The Member and the Supplier acknowledge that for the purposes of the Data Protection Act 1998, the Member is the Data Controller and the Supplier is the data processor in respect of any Personal Data. The Member shall own all right, title and interest in and to all of the Member Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Member Data.
9.2 The Supplier shall process the Personal Data only in accordance with the Member’s instructions from time to time and shall not process the Personal Data for any purposes other than those expressly authorised by the Member and for the purposes of delivering the Services.
9.3 The Supplier shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.
9.4 Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
9.5 The Supplier warrants that, having regard to the state of technological development and the costs of implementing any measures, it will:
(a) take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
(i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
(ii) the nature of the data to be protected; and
(b) take reasonable steps to ensure compliance with those measures.
9.6 Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this clause 9.
9.7 The Member acknowledges that the Supplier is reliant on the Member for direction as to the extent to which the Supplier is entitled to use and process the Personal Data. Consequently, the Supplier will not be liable for any claim brought by a Data Subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Member’s instructions.
9.8 The Supplier may authorise a third party (subcontractor) to process the Personal Data provided that the subcontractor’s contract:
(a) is on terms which are substantially the same as those set out in the Contract; and
(c) terminates automatically on termination of the Contract for any reason.
9.9 The Supplier will ensure that it maintains appropriate archiving and back-ups of Member Data and Analytical Data. In the event of any loss or damage to any Member Data or Analytical Data, the Member’s sole and exclusive remedy will be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Member Data or Analytics Data from the latest back-up maintained by the Supplier in accordance with the Supplier’s internal procedures and policies (which are available to the Member upon request). The Supplier is not responsible for any loss, destruction, alteration or disclosure of Member Data or Analytical Data caused by any third party, except those parties subcontracted by the Supplier to perform the Services in relation to the Member Data or Analytical Data for maintenance and back-up.
10. LIMITATION OF LIABILITY: THE MEMBER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
10.1 Nothing in the Contract shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
10.2 Subject to Clause 10.1, the Supplier shall not be liable to the Member, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) any indirect or consequential loss.
10.3 Subject to Clause 10.1, the Supplier’s total liability to the Member, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the total Charges paid under the Initial Subscription Term or any Renewal Period (as applicable), such charges being pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
10.4 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 the Contract.
10.5 This 10 shall survive termination of the Contract.
11.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party written notice, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case the agreement shall terminate upon the expiry of the respective period or term.
11.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 60 days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
11.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Member if:
(a) the Member fails to pay any amount due under the Contract on the due date for payment;
11.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Member and the Supplier if the Member fails to pay any amount due under the Contract on the due date for payment, the Member becomes subject to any of the events listed in Clause 11.2(b) to Clause 11.2(d), or the Supplier reasonably believes that the Member is about to become subject to any of them.
12. CONSEQUENCES OF TERMINATION
12.1 On termination of the Contract:
(a) the Member shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Member immediately on receipt;
(b) the Member shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Member fails to do so, then the Supplier may enter the Member’s premises and take possession of them. Until they have been returned, the Member shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
12.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
12.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
13.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
13.2 Assignment and other dealings.
(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Member shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
(a) 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, except as permitted by Clause 13.3(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 13.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
13.4 Entire agreement.
(a) The Contract 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.
(b) Each party acknowledges that in entering into the Contract 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 Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
13.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
13.7 Severance. If any provision or part-provision of the Contract 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 Contract.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be 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 sent by fax to its main fax number or sent by email to the address specified on the website.
(b) Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; 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; or, if sent by fax or email, at 9.00 am on the next Business Day after transmission.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
13.9 Third party rights.
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
13.10 Governing law. The Contract, 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.
13.11 Jurisdiction. 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 the Contract or its subject matter or formation.