TERMS and CONDITIONS
The following Terms and Conditions (T&C) relate to a contract between you and Phiphase Limited comprising an accepted quotation or estimate (for example a Purchase Order) and the following T&C as may be added to by means of Special Conditions.
| Application and Entire Agreement |
| 1. These Terms and Conditions apply to the provision of the services detailed in our estimate or quotation (Services) by PHIPHASE LIMITED a company registered in England and Wales under number 10417745 whose registered office is at 10, Broome Close, Yateley, Hampshire GU46 7SY, (we or us) to the person buying the services (you). |
| 2. You are deemed to have accepted these Terms and Conditions when you accept our estimate or quotation (purchase order or other notice) or from the date of any performance of the Services (whichever happens earlier) and these Terms and Conditions and our estimate or quotation (the Contract) are the entire agreement between you and us (the parties). |
| 3. You acknowledge that you have not relied on any statement, promise or representation made or given by or on our behalf. These Conditions apply to the Contract to the exclusion of any other terms that you try to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. |
| Interpretation |
| 4. A “business day” means any day other than a Saturday, Sunday or bank holiday in England and Wales. |
| 5. The headings in these Terms and Conditions are for convenience only and do not affect their interpretation. |
| 6. Words imparting the singular number shall include the plural and vice-versa. |
| 7. When an Estimate has been provided, unless otherwise noted, subsequent references to Quotation shall mean Estimate. |
| Services |
| 8. We warrant that we will use reasonable care and skill in our performance of the Services which will comply with the quotation, including any specification in all material respects. We can make any changes to the Services which are necessary to comply with any applicable law or safety requirement, and we will notify you of this as necessary. |
| 9. We will use our reasonable endeavours to complete the performance of the Services within the time agreed or as set out in the quotation; however, time shall not be of the essence in the performance of our obligations. |
| 10. All of these Terms and Conditions apply to the supply of any goods as well as Services unless we specify otherwise. |
| Your obligations |
| 11. You must obtain any permissions, consents, licenses or otherwise that we need and must give us with access to any and all relevant information, materials, properties and any other matters which we need to provide the Services. |
| 12. If you do not comply with clause 11, we can terminate the Services. |
| 13. We are not liable for any delay or failure to provide the Services if this is caused by your failure to comply with the provisions of this section (Your obligations). |
| Fees |
| 14. The fees (Fees) for the Services are set out in the quotation and are on a time and materials basis. |
| 15. In addition to the Fees, we can recover from you: |
| a. reasonable incidental expenses including but not limited to, traveling expenses, hotel costs, subsistence and any associated expenses, |
| b. the cost of services provided by third parties and required by us for the performance of the Services, and |
| c. the cost of any materials required for the provision of the Services. |
| 16. You must pay us for any additional services provided by us that are not specified in the quotation in accordance with our then current, applicable hourly or daily rate in effect at the time of performance or such other rate as may be agreed between us. The provisions of clause 15 also apply to these additional services. |
| 17. The Fees are exclusive of any applicable VAT and other taxes or levies which are imposed or charged by any competent authority. |
| Estimates |
| 18. Where an Estimate (as distinct from a Quotation) has been provided, the parties agree that the total Fees payable may be greater than or less than the Estimated Fees and that all terms and conditions shall have effect as if a Quotation had been provided. |
| Cancellation and amendment |
| 19. We can withdraw, cancel or amend a quotation if it has not been accepted by you, or if the Services have not started, within a period of 30 (thirty) days from the date of the quotation, (unless the quotation has been withdrawn). |
| 20. Either we or you can cancel an order for any reason prior to your acceptance (or rejection) of the quotation. |
| 21. Following acceptance of a quotation the order may not be cancelled without our written consent. In the event that cancellation is agreed for whatever reason, you shall indemnify us against all costs, claims, loss and expenses occasioned thereby. |
| 22. If you want to amend any details of the Services you must tell us in writing as soon as possible. We will use reasonable endeavours to make any required changes and additional costs will be included in the Fees and invoiced to you. |
| 23. If, due to circumstances beyond our control, including those set out in the clause below (Circumstances beyond a party’s control), we have to make any change in the Services or how they are provided, we will notify you immediately. We will use reasonable endeavours to keep any such changes to a minimum. |
| Payment |
| 24. We will invoice you for payment of the Fees as agreed, either: |
| a. when we have completed the Services; or |
| b. on the invoice dates set out in the quotation; or |
| c. Monthly |
| 25. You must pay the Fees due within 30 (thirty) days of the date of our invoice or otherwise in accordance with any credit terms agreed between us. |
| 26. Time for payment shall be of the essence of the Contract. |
| 27. Without limiting any other right or remedy we have for statutory interest, if you do not pay within the period set out above, we may charge you interest at the rate of 8% per annum above the base lending rate of the Bank of England from time to time on the amount outstanding until payment is received in full. |
| 28. All payments due under these Terms and Conditions must be made in full without any deduction or withholding except as required by law and neither of us can assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any such amount in whole or in part. |
| 29. If you do not pay within the period set out above, we can suspend any further provision of the Services and cancel any future services which have been ordered by, or otherwise arranged with, you. |
| 30. Receipts for payment will be issued by us only at your request. |
| Sub-Contracting and assignment |
| 31. We can at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of our rights under these Terms and Conditions and can subcontract or delegate in any manner any or all of our obligations to any third-party. |
| 32. You must not, without our prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under these Terms and Conditions. |
| Termination |
| 33. We can terminate the provision of the Services immediately if you: |
| a. commit a material breach of your obligations under these Terms and Conditions; or |
| b. fail to make payment of any amount due under the Contract on the due date for payment; or |
| c. are or become, or, in our reasonable opinion, are about to become, the subject of a bankruptcy order or take advantage of any other statutory provision for the relief of insolvent debtors; or |
| d. enter into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with its creditors; or |
| e. convene any meeting of your creditors, enter into a voluntary or compulsory liquidation, have a receiver, manager, administrator or administrative receiver appointed in respect of your assets or undertakings or any part of them, any documents are filed with the court for the appointment of an administrator in respect of you, notice of intention to appoint an administrator is given by you or any of your directors or by a qualifying floating charge holder (as defined in para. 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for your winding up or for the granting of an administration order in respect of you, or any proceedings are commenced relating to your insolvency or possible insolvency. |
| f. and us agree in writing to a termination notice, notwithstanding an agreed contractual termination period or date. |
| Intellectual property |
| 34. We reserve all copy right and any other intellectual property including Trade secrets, moral rights, goodwill, drawings, plans, specifications, data, documentation, software, hardware (including Hardware Description Language), models and patents rights or which may subsist in goods supplied in connection with the provision of the Services (our “Background Intellectual Property”). We reserve the right to take any appropriate action to restrain or prevent the infringement of such intellectual property rights. For the avoidance of doubt, title to “Foreground Intellectual Property” as a direct result of provision of the Services by us is assigned to you. |
| 35. To fulfill the Services, it is understood by you and us that it may be necessary to share project-relevant Background Intellectual Property and business ideas. We will therefore use good endeavours to protect each other’s business interests and Intellectual Property where relevant to each other’s businesses. |
| Liability and indemnity |
| 36. Our liability under these Terms and Conditions, and in breach of statutory duty, and in tort or misrepresentation or otherwise, shall be limited as set out in this clause. |
| 37. The total amount of our liability is limited to the total amount of Fees payable by you under the Contract. |
| 38. We are not liable (whether caused by our employees, agents or otherwise) in connection with our provision of the Services or the performance of any of our other obligations under these Terms and Conditions or the quotation for: |
| a. any indirect, special or consequential loss, damage, costs, or expenses or; |
| b. any loss of profits; loss of anticipated profits; loss of business; loss of data; loss of reputation or goodwill; business interruption; or, other third-party claims; or |
| c. any failure to perform any of our obligations if such delay or failure is due to any cause beyond our reasonable control; or |
| d. any losses caused directly or indirectly by any failure or your breach in relation to your obligations; or |
| e. any losses arising directly or indirectly from the choice of Services and how they will meet your requirements or your use of the Services or any goods supplied in connection with the Services. |
| 39. You must indemnify us against all damages, costs, claims and expenses suffered by us arising from any loss or damage to any equipment (including that belonging to third parties) caused by you or your agents or employees. |
| 40. Nothing in these Terms and Conditions shall limit or exclude our liability for death or personal injury caused by our negligence, or for any fraudulent misrepresentation, or for any other matters for which it would be unlawful to exclude or limit liability. |
| Data Protection |
| 41. When supplying the Services to the Customer, the Service Provider may gain access to and/or acquire the ability to transfer, store or process personal data of employees of the Customer. |
| 42. The parties agree that where such processing of personal data takes place, the Customer shall be the ‘data controller’ and the Service Provider shall be the ‘data processor’ as defined in the General Data Protection Regulation (GDPR) as may be amended, extended and/or re-enacted from time to time. |
| 43. For the avoidance of doubt, ‘Personal Data’, ‘Processing’, ‘Data Controller’, ‘Data Processor’ and ‘Data Subject’ shall have the same meaning as in the GDPR. |
| 44. The Service Provider shall only Process Personal Data to the extent reasonably required to enable it to supply the Services as mentioned in these terms and conditions or as requested and agreed with the Customer, shall not retain any Personal Data longer than necessary for the Processing and refrain from Processing any Personal Data for its own or for any third-party’s purposes without the Customer’s consent. |
| 45. The Service Provider shall not disclose Personal Data to any third parties other than employees, directors, agents, sub-contractors or advisors on a strict “need-to-know” basis and only under the same (or more extensive) conditions as set out in these terms and conditions or to the extent required by applicable legislation and/or regulations. |
| 46. The Service Provider shall implement and maintain technical and organisational security measures as are required to protect Personal Data Processed by the Service Provider on behalf of the Customer. |
| 47. Further information about the Service Provider’s approach to data protection are specified in its Data Privacy Policy, which can be found on our website www.phiphase.com. |
| Circumstances beyond a party’s control |
| 48. Neither of us is liable for any failure or delay in performing our obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question. If the delay continues for a period of 90 days, either of us may terminate or cancel the Services to be carried out under these Terms and Conditions. |
| Communications |
| 49. All notices under these Terms and Conditions must be in writing and signed by, or on behalf of, the party giving notice (or a duly authorised officer of that party). |
| 50. Notices shall be deemed to have been duly given: |
| a. when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; |
| b. when sent, if transmitted by fax or email and a successful transmission report or return receipt is generated; |
| c. on the fifth business day following the mailing, if mailed by national ordinary mail; or |
| d. on the tenth business day following mailing, if mailed by airmail. |
| 51. All notices under these Terms and Conditions must be addressed to the most recent address, email address or fax number notified to the other party. |
| No waiver |
| 52. No delay, act or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy nor stop further exercise of any other right, or remedy. |
| Severance |
| 53. If one or more of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that/those provisions will be deemed severed from the remainder of these Terms and Conditions (which will remain valid and enforceable). |
| Law and jurisdiction |
| 54. This Agreement shall be governed by and interpreted according to the law of England and Wales and all disputes arising under the Agreement (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the English and Welsh courts. |
Version.: 2021/10 |
Phiphase Limited Intellectual Property License TERMS and CONDITIONS
Definitions
Intellectual Property (IP) shall mean any intellectual property the title of which is held by us including trade secrets, moral rights, goodwill, drawings, plans, specifications, data, documentation, software, hardware (including Hardware Description Language), models and patents rights. We reserve the right to take any appropriate action to restrain or prevent the infringement of such intellectual property rights. License shall mean a license for you to use our IP as detailed in the Quotation. The headings in these Terms and Conditions are for convenience only and do not affect their interpretation. Words imparting the singular number shall include the plural and vice-versa. Parties shall mean you and us together. Contract shall mean the Quotation and these Terms and Conditions together.
|
| The License shall be non-transferable. |
| The IP shall not be given by you to any third party including your subsidiaries unless agreed in writing by the Parties. |
| You are deemed to have accepted these Terms and Conditions when you accept our quotation (purchase order or other notice) or from the date of any use of the License (whichever happens earlier). These Terms and Conditions and our quotation (the Contract) constitute the entire agreement between the parties. |
You acknowledge that you have not relied on any statement, promise or representation made or given by us or on our behalf. This Agreement applies to the Contract to the exclusion of any other terms that you try to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. You acknowledge that you will use reasonable endeavors that the Licensed IP will only be used by suitably qualified staff. You are not automatically entitled to any improvement or corrections to the IP made by us. |
| Interpretation and Warranty |
| We warrant that we have used reasonable care and skill in the development of our IP. We can make changes and improvements to the IP at any time without notice. |
| We make no representations or warranties expressed or implied that the IP is free from error. You use the IP entirely at your own risk. |
| We accept no liability for errors contained herein or for incidental or consequential damages which may occur from the use or performance of the IP. |
We accept no liability for the correctness of support including our support and/or updates to the IP (if applicable), or for incidental or consequential damages which may arise from such support if provided. We make no representations or warranties as to the availability of support including updates to the IP. In no event will we be liable for any loss of profit or any other commercial damage of any kind. We disclaim all implied warranties of merchantability or fitness for a particular purpose. (Some countries do not allow the exclusion of implied warranties. Therefore this clause may not apply to some licensees. In such cases the liability of Phiphase Limited is strictly limited to the purchase price of the License.) |
| Termination |
| We reserve the right to terminate the Contract after 30 days for any breach of the Contract, whereupon you agree to return to Phiphase Limited all copies of the licensed IP along with all archival copies. You will not be entitled to any refund of amounts paid for the IP license. |
| If payment of Fees for the License is late, without limiting any other right or remedy we have for statutory interest, if you do not pay within the period set out in the Quotation, we may charge you interest at the rate of 8% per annum above the base lending rate of the Bank of England from time to time on the amount outstanding until payment is received in full. |
| We can terminate the Contract immediately if you: |
| a. fail to make payment of any Fees due under the Contract on the due date for payment; or |
| b. are or become, or, in our reasonable opinion, are about to become, the subject of a bankruptcy order or take advantage of any other statutory provision for the relief of insolvent debtors; or |
| c. enter into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with its creditors; or |
| d. convene any meeting of your creditors, enter into a voluntary or compulsory liquidation, have a receiver, manager, administrator or administrative receiver appointed in respect of your assets or undertakings or any part of them, any documents are filed with the court for the appointment of an administrator in respect of you, notice of intention to appoint an administrator is given by you or any of your directors or by a qualifying floating charge holder (as defined in para. 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for your winding up or for the granting of an administration order in respect of you, or any proceedings are commenced relating to your insolvency or possible insolvency. |
| If you do not comply with clause 11, we can terminate the Services. |
| We are not liable for any delay or failure to provide the Services if this is caused by your failure to comply with the provisions of this section (Your obligations). |
| Communications |
| All notices under these Terms and Conditions must be in writing and signed by, or on behalf of, the party giving notice (or a duly authorised officer of that party). |
| Notices shall be deemed to have been duly given: |
| a. when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; |
| b. when sent, if transmitted by fax or email and a successful transmission report or return receipt is generated; |
| c. on the fifth business day following the mailing, if mailed by national ordinary mail; or |
| d. on the tenth business day following mailing, if mailed by airmail. |
| All notices under these Terms and Conditions must be addressed to the most recent address, email address or fax number notified to the other party. |
| Severance |
| If one or more of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that/those provisions will be deemed severed from the remainder of these Terms and Conditions (which will remain valid and enforceable). |
| Governing Law |
| This agreement shall be construed in accordance with and shall be governed by the laws of England and Wales and shall benefit us, our successors and assigns. |
| Copyright |
| The IP shall remain the property of Phiphase Limited, and is protected by both the Copyright laws of England and Wales and by International provisions. |
| Trademarks |
| Where applicable, trademarks are the property of their respective owners and are used for identification purposes only. |