Terms & Conditions
01. THE AGREEMENT:
These terms and conditions (the “Terms and Conditions”) apply in relation to the statement of work to which they are attached or in which they are referenced (the “Statement of Work”) and the services to be delivered as specified in the Statement of Work, (the “Services”). In the event that the client named in the Statement of Work (the “Client”) accepts the Statement of Work (by signing, physically or electronically, the Statement of Work where indicated), an agreement (the “Agreement”) will be formed (on the date of such acceptance) between The Forge Insight Limited (“The Forge”) and the Client which will comprise the matters set out in the Statement of Work and these Terms and Conditions. The Client and The Forge are the “Parties” to this Agreement. In the event that there is any conflict or inconsistency between the provisions set out in the Statement of Work and those in these Terms and Conditions, the provisions in the Statement of Work shall take precedence.
02. SERVICES TO BE PROVIDED BY THE FORGE:
The Forge shall provide to the Client the Services subject to the provisions of these Terms and Conditions.
03. OBLIGATIONS OF THE CLIENT:
The Client shall provide to The Forge promptly upon request, all information and materials which is anticipated to be required by The Forge in order to be able to provide the Services under the Agreement.
The Client shall comply with all applicable laws (including, without limitation, all data protection laws).
04. CLIENT WARRANTIES AND UNDERTAKINGS:
The Client warrants to The Forge that it either owns or has the legal right to use for the relevant purpose (and, if required by The Forge, sub-licence to The Forge), the Intellectual Property Rights (as defined below) in all materials or information which it provides to The Forge in connection with the provision of the Services.
The Client warrants to The Forge that all information provided by it (or its employees, directors, agents, advisors and/or sub-contractors) to The Forge in connection with the Agreement will be accurate in all material respects.
The Client warrants to The Forge that it has the legal ability to enter into this Agreement and perform its obligations under it.
The Client shall be responsible for obtaining all visas, work permits, or other permissions required to enable The Forge to carry out its obligations under the Agreement. The Forge agrees to provide all information and other assistance (other than monetary assistance) as the Client reasonably requires to assist the Client with determining the necessity for and the obtaining of such visas, work permits or other permissions.
05. FEES AND CHARGES:
In consideration of The Forge providing the Services the Client shall pay The Forge the fees and charges specified in the Statement of Work (the “Fees and Charges”) plus (if not already added) an amount representing VAT.
Unless otherwise specified in the Statement of Work, the Fees and Charges shall be paid in two instalments as follows:
- 75% of the Fees and Charges shall be paid as soon as reasonably practicable (and, in any event, within 30 days of the date the Agreement is formed) (and The Forge shall not be obliged to commence any work in relation to the provision of the Services until such time as this first instalment has been received by The Forge); and
- the remaining 25% of the Fees and Charges shall be paid within 30 days of the final debrief.
The Client shall pay all amounts due to The Forge to the bank account specified in the relevant invoice (or such other bank account as The Forge notifies the Client in writing).
Without prejudice to any other right or remedy that it may have, if the Client fails to pay any amount due to The Forge by the due date, The Forge may charge interest on such sum from the due date for payment at a yearly rate of 3% above the base rate for the time being of Barclays Bank PLC which shall accrue on a daily basis from the due date until payment is made.
In addition to the payment of the Fees and Charges, the Client shall reimburse The Forge for all expenses incurred by The Forge or its employees, officers, consultants, advisors, and other personnel in connection with the provision of the Services (such expenses to include, without limitation, travel, currency exchange, accommodation, and subsistence expenses) (the “Expenses”).
06. INTELLECTUAL PROPERTY RIGHTS:
”Intellectual Property Rights” or “IPR” means copyright, rights related to copyright such as moral rights, patents, rights in inventions, rights to use and protect the confidentiality of confidential information (including, but not limited to know-how and trade secrets), trade marks, geographical indications, service marks, trade names, design rights, rights in get-up and trade dress, database rights, databases, data exclusivity rights,, domain names, business names, rights in computer software, the right to sue for infringement, unfair competition and passing off, all similar rights of whatever nature wherever in the world arising.
No Assignment. Except as expressly stated in the SOW, each party will retain all right, title and interest in and to its pre-existing IPR and any IPR developed or acquired outside of the SOW (“Background IPR“). The SOW does not convey any licence rights, either express or implied, to any IPR unless expressly stated in the SOW. The Client retains Intellectual Property Rights in, and ownership of all materials, plans, drawings, tools, data, any specification, patterns or designs provided by The Client to The Forge, and they will all be returned at any time in good condition to the Client at the Client’s request or upon termination of the SOW.
Arising IPR. For the purpose of this clause, “Arising IPR” means IPR in and to the Deliverables and all other IPR created under the SOW or in connection with the Services, but excluding any Background IPR.
The Forge’s Licence. The Forge hereby grants the Client and its Affiliates a worldwide, non-exclusive, sub-licensable, transferable, perpetual, irrevocable, fully paid-up, royalty-free licence to its IPR to the extent necessary for the Client to use, modify, develop, distribute or otherwise exploit the Deliverables and receive the Services. If The Forge uses any third party IPR in any Deliverables or which is required for The Client to use, modify, develop, distribute or exploit the Deliverables, then The Forge will obtain The Client’s prior written consent before using such third party IPR and will also obtain (at no additional cost to The Client) all necessary rights in the third party IPR to make the equivalent licence provided in this clause.
The Client Licence. The Client hereby grants The Forge a non-exclusive, non-transferable, revocable, fully paid-up, royalty free licence to The Client’s IPR (excluding any trade marks) to use, copy and modify such materials as are made available by The Client pursuant to the SOW to the extent necessary for The Forge to provide the Services and so far as it is free and able to do so. Forge has no right to sublicense the same, except as necessary to any approved subcontractor and no right to reverse engineer, decompile or disassemble such The Client materials, except as expressly permitted by The Client.
Transfer of Deliverables. The Forge will promptly deliver up and transfer to The Client the Deliverables and any inventions, works of authorship (including software), improvements, developments or discoveries conceived, authored, made or reduced to practice by or on behalf of The Forge, either solely or in collaboration with others, in respect of the Deliverables and The Forge will disclose in writing to The Client all know-how and technical information to enable The Client to receive the full benefit of the Deliverables.
Assignment of IPR. The parties intend that all Arising IPR will belong to The Client. To the extent that Arising IPR is capable of prospective assignment, The Forge hereby assigns to The Client free from third party claims absolutely with full title guarantee, all right, title, and interest in and to any and all Arising IPR subject only to any third party IPR where The Client has provided its prior written consent (above) together with:
- All the rights, powers, privileges and immunities arising or accrued therefrom;
- The right to apply for, prosecute and obtain registered protection throughout the world with respect to the Arising IPR (or any part of it) (together with the right to claim priority from any patent applications) with the intent that the grant of any such protection will be in the name of and will vest in The Client absolutely; and
- The right to institute and maintain proceedings for any infringement of the same, whether now, hereafter or which may have occurred before the date hereof including the right to claim and retain damages and other relief obtained as a result of such proceedings.
The Client will be responsible for all patent filing, prosecution, maintenance, enforcement, and defence of Arising IPR. To the extent any Arising IPR cannot be assigned prospectively, The Forge will assign such Arising IPR to The Client as and when created. The assignment of IPR under this clause will take effect on the date of the SOW in respect of Arising IPR in existence, or as a present assignment of future rights that will take effect immediately on the coming into existence of the Arising IPR, as appropriate.
The Forge is not liable for any loss incurred by the Client or any third party by reason of any breach of any third-party intellectual property rights in respect of any proposed names, designs, logos provided to you in connection with the Services. In addition, the Client indemnifies The Forge in relation to any loss, cost or expense incurred by The Forge in relation to such a breach.
07. DATA PROTECTION:
Both parties shall comply with their respective obligations with respective to the collection, process, and storage of personal data in accordance with the provisions of current Data Protection Legislation.
For complete details of The Forge’s collection, processing, storage, and retention of personal data including, but not limited to, the purpose(s) for which personal data is used, the legal basis or bases for using it, details of the Client’s rights and how to exercise them, and personal data sharing (where applicable), please refer to The Forge’s data protection policy, a copy of which is available on The Forge’s website here: https://www.thisistheforge.com/privacy-policy/
For the purposes of this section, “UK Data Protection Legislation” means all applicable legislation in force from time to time in the United Kingdom applicable to data protection and privacy including, but not limited to, the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder); and the Privacy and Electronic Communications Regulations 2003 as amended.
The Client and The Forge shall each keep in strict confidence all confidential information of the other (which will include, without limitation, material and/or information which relates to the business affairs, products, services, marketing strategy, developments, trade secrets and information of commercial value, know-how, personnel, customers, clients, and suppliers) subject as mentioned below.
Either Party may disclose the following: (i) confidential information of the other Party to its employees, officers, representatives, advisers, agents or sub-contractors who need to know such information for the purposes of carrying out its obligations under the Agreement; (ii) information which becomes public other than by reason of a breach of the obligation of confidentiality above; (iii) information to the extent required by applicable law, court order or any governmental or regulatory authority; and (iv) confidential information of the other Party to its professional advisers who need to know such information for the purposes of carrying out their obligations to the disclosing Party.
Each Party shall ensure that its employees, officers, representatives, advisers, agents, or sub-contractors to whom it discloses information comply with the confidentiality obligations above and take all such steps as shall from time to time be necessary to ensure compliance by its employees, officers, representatives, advisers, agents, or sub-contractors with these obligations of confidentiality.
The confidentiality provisions above shall survive the termination of this Agreement for any reason.
09. INDEMNITY AND LIMITATION OF LIABILITY:
The Client will be liable for and will indemnify The Forge for and in respect of all and any losses, claims, demands, damages or expenses which The Forge may suffer due to or arising directly or indirectly as a result of any of: (i) the proper performance by The Forge of its obligations under the Agreement; (ii) any change requested by the Client (and agreed to by The Forge) to any matters set out in the Statement of Work (including, without limitation, the times or dates of the delivery of the Services); or (iii) the negligence, act or omission, breach of contract, breach of duty, insolvency, recklessness, bad faith, wilful default or fraud of the Client, its employees, subcontractors or agents or any of them. This paragraph shall survive the termination of this Agreement for any reason.
Subject as otherwise mentioned below, the liability of The Forge in contract, tort (including negligence or breach of statutory duty), or otherwise arising in connection with the Agreement will be limited to the total price paid by the Client for the Services. It is noted, in this regard, that The Forge currently maintains in force professional indemnity insurance with a limit of £5 million.
Notwithstanding any other provision contained in the Agreement, neither Party excludes or restricts its liability: (i) for death or personal injury caused by its negligence, or the negligence of its employees, agents, or subcontractors; (ii) for fraud or fraudulent misrepresentation; or (iii) to the extent it is otherwise prohibited by law from excluding or restricting liability.
10. FORCE MAJEURE:
The Forge shall not be liable for any failure to comply with its obligations under this Agreement to the extent that compliance is restricted impeded or prevented by circumstances beyond its reasonable control. Such circumstances shall include but shall not be limited to acts of God, war, government regulations or intervention, disaster, epidemic, pandemic, fire, flood, strikes, labour dispute, accident, riot, civil disorder, or terrorist act directly affecting the ability of either Party to perform their obligations under this Agreement. If such circumstances arise and cause a delay or failure in the performance by The Forge of its obligations under the Agreement, The Forge shall notify the Client of that fact. If the circumstances continue for a continuous period of more than three months, The Forge may terminate this Agreement without liability to the Client. If this Agreement is terminated pursuant to this paragraph, the Client shall only be liable to pay that proportion of the total amount which would have been payable under this Agreement (absent a termination) which is equal to the proportion of the obligations actually fulfilled by The Forge in accordance with the terms and conditions of this Agreement up to the date of termination as confirmed by The Forge (such amount being the “Proportionate Amount”). In the event that the Client has paid more than such Proportionate Amount to The Forge before the termination, The Forge shall refund the excess to the Client as soon as reasonably practicable.
The Forge may sub-contract performance of its obligations under the Agreement (or part thereof) to any other person, firm, corporation, or organisation.
The Forge may terminate the Agreement without cause by written notice to the Client of not less than one month. If The Forge terminates pursuant to this paragraph the Client shall be entitled to request either (and The Forge shall be obliged to comply with the Client’s request): (i) a refund of any amounts of Fees and Charges already received by The Forge from the Client with respect to work not completed as at the termination date set out in the notice of termination; or (ii) the entry into of a new agreement for the provision of the Services with such changes as The Forge may reasonably require.
The Client may terminate the Agreement without cause by written notice to The Forge of not less than one month. If the Client terminates the Agreement pursuant to this paragraph, it shall be liable to pay to The Forge that amount of the Fees and Charges which The Forge estimates (in its sole discretion, but acting reasonably) to represent the amount of work carried out by The Forge up to the date of termination (together with any related costs or expenses that have been incurred by The Forge prior to the date of termination or that the Forge will need to incur after termination in relation to the Services which were agreed to be provided (for example, but without limitation, consultancy fees)).
In addition to the other rights of termination set out in the Agreement, either Party may terminate the Agreement immediately by notice in writing to the other Party if:
- such other Party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
- such other Party commits a breach of any of the material terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of such other Party being notified in writing of the breach;
- such other Party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement;
- such other Party commits an irremediable breach of any material term of this Agreement;
- such other Party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
- such other Party becomes insolvent or enters into liquidation or receivership or is the subject of an application for an administration order or suffers an administrative receiver to be appointed in relation to the whole or any part of its assets or makes a composition or arrangement with its creditors or suffers any judgement to be executed in relation to any of its property or assets, otherwise than for the purposes of a solvent amalgamation or reconstruction.
Termination or expiry of the Agreement shall not affect any rights, remedies, obligations, or liabilities of the Parties that have accrued up to the date of termination or expiry, including payment rights/obligations and/or the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
Each Party agrees that it shall not make any claim, in relation to this Agreement, against any director, agent or employee of the other Party.
This Agreement may be entered in any number of counterparts and by the Parties to it on separate counterparts, each of which when so executed and delivered shall be an original.
These Terms and Conditions (and the Statement of Work) may be translated into any language other than English, and the Client may sign any such translated version to evidence its agreement to enter into the Agreement. However, in the event of any inconsistency between the English version (which The Forge will always sign) and any translated version, the English version takes precedence.
This Agreement shall be governed by the laws of England. The Courts of England shall have full jurisdiction to resolve any disputes or claims arising under this Agreement (including any non-contractual disputes or claims).