Terms and Conditions

These Terms and Conditions are to be read in conjunction with the signed and dated Commercial Terms schedule to which they are attached; together they form the basis of the Agreement between Factory Settings and the Customer on whose behalf the Commercial Terms schedule have been signed (the Parties). The Commercial Terms schedule and these Terms and Conditions may only be amended and/or varied by agreement in writing between duly authorised representatives of the Parties.
SECTION 1: Definitions

1.1 The following defined terms are used in these terms and conditions.

Factory Settings; Factory Settings Limited, a company incorporated in England and Wales with registered number 05605257 and registered office operating out of Unit 10, Orient Industrial Park, Simonds Road, London E10 7DE.

Commercial Terms schedule: the schedule to which these terms and conditions are attached, signed on Your behalf, which sets out the key commercial terms agreed between Us and You for the Services that You have engaged Us to provide to You.

Recipient: the person whom You nominate as your authorised representative to receive official communications or other content from Us who is also authorised to agree matters on Your behalf from time to time.

Services: the services that You have engaged Us to provide to You as more particularly set out on the Commercial Terms schedule.

Us/We/Our: Factory Settings, our employees, authorised agents and sub-contractors involved in providing the Services to You.

You/Your: the Customer or client of Factory Settings agreeing to these terms and conditions, including all of Your employees and agents.

SECTION 2: Supply and use of the Services and rights in the products of the Services

2.1 The provision and use of Services is governed by the Commercial Terms schedule and the terms and conditions set out herein.

2.2 We will rely on Your brief or specification for the requirement of the Services and the charges set out in the Commercial Terms schedule are based on such brief/specification. If at any time You request a change to the brief/specification and/or other change to the extent or nature of the Services, We reserve the right to amend the said charges accordingly; until any such changes are agreed in writing with Us, the original charges quotation for the Services will stand.

2.3 Unless specifically agreed otherwise with You, the Services will be provided ?as is? and we make no warranty or give any undertaking that the Services or products of the Services will be suitable for any use You or your clients/customers may make of them. If there are specific requirements for how the products of the Services will function or operate, these must be specifically notified and agreed with Us in advance of provision of the Services. You are responsible for all maintenance, security and operation (if any) of the products of the Services, for all notifications and warnings required to members of the public visiting Your premises and for all permissions and satisfactions of all health and safety (both statutory, regulatory and otherwise) requirements and risk assessments for all aspects of the Services and the products thereof, save only as may be specifically agreed with Us in writing.

2.4 If the Services include the need for You to access information (CAD drawings or similar) online this may require a username (a valid email address) and confidential password. A limited number of passwords may be provided to You, for Your employees/agents, in a format specified by Us.

2.5 It is Your responsibility to make sure that where the Services are ongoing or spread over a period of time with staged or instalment payments, that Your account is up to date and all outstanding payments have been made before We are obliged to continue to provide the Services.

2.6 You are required to keep your password(s) confidential (but such password(s) may be shared among Your employees) and to notify Us immediately You become aware of any unauthorised use of Your password(s) or that any unauthorised party has obtained access to your password(s).

2.7 Unless specifically agreed otherwise, as may be reflected in the Commercial Terms schedule, all intellectual property rights (including without limitation copyright, industrial design rights, database rights, patents and trade secrets, whether registered or unregistered) in the Services and the products thereof shall remain vested in Us and You are hereby granted a non-exclusive licence only to use such rights for the purposes of making use of the Services in the manner outlined on the Commercial Terms schedule and not otherwise. Without limitation, this means that You cannot copy or reproduce anything contained in the Services on other occasions or for other purposes or distribute copies of any materials used in the provision of the Services to any third party, without prior written authority from Us, which We may grant or withhold at our absolute discretion and on new terms to be agreed with Us. In the event that such rights are infringed by any third party, You shall notify Us as soon as possible once You become aware of such infringement and shall provide all reasonable assistance at our reasonable cost in any action We may take to protect Our rights and to prevent such third party from infringing such rights.

SECTION 3: Charges and Credit Terms

3.1 The Charges payable for the Services are as set out on the Commercial Terms schedule, or as separately agreed with Us, and are exclusive of VAT which is payable in addition to such charges.

3.2 Charges for the Services may be payable in advance of the Services to be provided as set out on the Commercial Terms schedule. We reserve the right to charge interest at 4% above the Bank of England base rate on any charges not paid by their due date, for as long as they remain unpaid. We shall also be entitled to reimbursement of reasonable costs incurred in the recovery of such sums. Time is of the essence in relation to all payments obligations.

3.3 Payment for any materials required for the Services may be needed in advance, as notified to You, and until such payment is received such materials will not be purchased; if payment for such materials is made after the date requested, the time for delivery of the finished product may be extended by such time until such payment is received by Us which We shall also notify to You.

3.4 The charges for the Services are based on timely provision of all information reasonably requested by Us from You and prompt payment in advance for any materials We require for the Services as well as reasonable access at times agreed with You to any premises where the Services are to be carried out/installed. In the event of any delays in the aforementioned items, We reserve the right to increase the charges to reflect any extra costs and time delays incurred by Us.

3.5 Where any final approval of the Services requires a sign-off from Your quantity surveyor or other party, as agreed on the Commercial Terms schedule, If not identified on the Commercial Terms schedule, You agree to notify Us of the identity of such surveyor or other relevant party and to arrange for inspection by such surveyor or other relevant party as soon as possible once We have delivered the final Services to You.

3.6 The results of the Services including all materials delivered to You remain Our property until all payments due are received by Us. We also reserve the right to recover such materials and to bar access to any Services and data where payments are overdue or dishonoured.

3.7 All payments are due in Sterling, unless payment in another currency is pre-agreed by Us in writing; You are responsible for the cost of bank transfers, currency conversions or other bank charges; if these are charged to Us, we will be entitled to claim these back from you plus an additional administrative charge of 10% of such amounts.

SECTION 4: Confirmation, Cancellation and Infringement consequences

4.1 We may send the Representative a drawing, plan, low resolution image or other relevant item relating to and showing Our understanding of the Services, for confirmation of the Services You have asked Us to provide. This shall be deemed to be correct, unless the said Representative notifies Us within 24 hours of receipt of such information that it does not correspond with the Services You have agreed with Us.

4.2 We may remove all client data from Our systems if You cancel Your agreement with Us, or where we are required to do so by a court order or other lawful authority, or where requested to do so by a third party who alleges, with reasonable justification (in our absolute discretion), that the relevant data infringes their or another party?s rights, or if We terminate access to the Services in accordance with section 6 below.

SECTION 5: Data Rights and Protection and Non-solicitation

5.1 You acknowledge that in order to supply a high level of service and support, it may be necessary for Us to access Your data or other data relevant to the Services.

5.2 You must obtain all necessary permissions from all relevant rights owners for us to have access to such data. You warrant and confirm that all such data will not be infected in any way, whether by viruses or other malicious content, or for storing defamatory content. We reserve the right to remove content contravening this condition.

5.3 You acknowledge that We will acquire personal and confidential data relating to You and possibly third parties during the course of providing the Services. In accepting these terms and conditions, You consent to the collection and storing of such information. You further consent that this data may be sold or transferred by Us to a third party purchasing at least the majority of Our assets.

5.4 By signing the Commercial Terms schedule You confirm that you have the necessary consents or permissions required for this section 5.

5.5 You agree that for a period of six (6) months from the date of conclusion of provision of the Services, (except with Our prior written consent) You will not directly or indirectly solicit or entice away (or attempt to solicit or entice away)
(a) from Our employment any employee of Ours who is employed or engaged in any work on the provision of the Services; or
(b) any client or customer of Ours (including any sub-contracted party) who is involved in the provision of the Services to You.

5.6 If You commit any breach of Section 5.5 above You shall, without prejudice to any other rights or remedies of Ours, on demand, pay to Us a sum equal to one year's basic salary or the annual fee that was payable by Us to that employee, worker or independent contractor, plus the recruitment costs incurred by Us in replacing such person

SECTION 6: Termination and Default

6.1 We may terminate the Services immediately by notice in writing to You in the event that You:-

- breach these terms and conditions, (and, if such breach is capable of cure, fail to remedy such breach after 5 days? notice to You requiring such cure to be effected):
- become bankrupt, insolvent, or have an administrator or liquidator appointed over Your assets, or become unable to pay Your outstanding debts: or,
- fail to settle Our invoices when due.

6.2 Termination of the relevant Service entitles us (at our election) to delay or cancel delivery of any of the Services to you and/or to delete any data You have stored with Us.

6.3 Any termination by Us of the Services or this agreement shall be without prejudice to Our entitlement to any outstanding payments required from You, and to any liability You may have to Us for breach of these terms and conditions, which shall remain fully enforceable by Us.

SECTION 7: Suspension

7.1 We may suspend delivery of the Services to You and/or continuing work on the Services and/or Your access to any online Services on notice to you (where possible and practical) in the event that:-

- any payments due to Us are outstanding or dishonoured
- You change the specification of the Services without agreement with Us
- We are prevented from having access to any premises where We are to install the products of the Services or prevented from having access to any facilities required for such installation which is not in Our control
- We are entitled to terminate Your access in accordance with the terms herein
- We need to carry out maintenance or updates (and shall provide as much notice as reasonably possible of this)
- We are required to comply with a request for such suspension from a government, law, or other administrative office.

SECTION 8: Liability

8.1 You agree that:

- We have no liability for any consequential or indirect loss, including damages for loss of business or business interruption caused by any failure to provide the Services in accordance with these terms and conditions.
- Our liability for any direct loss You suffer as a direct result of a breach of these terms and conditions is limited to the maximum of any amount paid to Us by You for the Services.

8.2 You shall indemnify Us from and against:

- Any claims brought against Us as a result of any acts and/or omissions by You, your agents or subcontractors, whether negligent or otherwise
- any loss or damage arising from unauthorised access to the online Services by a third party using a password issued in good faith to You
- any claims arising in any way from data provided by You to Us, including without limitation from any copyright or intellectual property infringements or libel, defamation, or breach of confidentiality claims.

8.3 You agree to put in place and maintain effective insurance policies for adequate levels of protection to guard against any significant loss or liability arising as a result of the Services and/or your use of the Services. We may request that We are added to such insurance policies as an additional insured depending on the Services and You agree to supply a copy of such insurance policies to Us on request to enable Us to verify Your compliance with this Section 8.3.

8.4 We shall not be responsible or liable for:-

- loss or damage resulting from any person gaining unauthorised access to the Services, whether through You or otherwise
- the disclosure of data relating to the Services resulting from unauthorised access by a third party whether through You or otherwise
- loss or damage resulting from malfunctions of our systems or services
- removal of Your data following suspension of the Services or termination of this Agreement in accordance with these terms and conditions
- messages or other provision of the Services being delayed because of any spam filtering system You or Your customers to whom We send data, have in place.

8.5 You acknowledge that some part of the Services may be made available over the Internet and that as such, data is carried by third parties over which We have no control and shall have no liability for: .

the unavailability of the Services due to reasons outside of our reasonable control,
- Your inability to access the Service,
- failure of any performance by any local delivery partner that You or We nominate,
- unavailability of the Service due to any action or ruling of any government, war, industrial action, breakdown of machinery or equipment or utility services, accident, fire or other cause beyond our reasonable control.

8.6 Nothing in this Section 8 affects or limits your statutory rights.

SECTION 9: General

9.1 You acknowledge that these terms and conditions in their entirety, together with the Commercial Terms schedule, constitute the entire agreement between Us and You relating to Your ordering and use of the Services and that You have not relied upon any communication or representation, oral or written, which is not contained in these terms and conditions. In the event of any conflict between these terms and conditions and the Commercial Terms schedule, the latter shall prevail and this Agreement shall override any contradictory terms and/or conditions that You may send Us with any order placed or other communication with Us.

9.2 You shall not use or authorise any party to use any Factory Settings trading name or trade mark without our prior written consent.

9.4 You undertake to comply with any export control or other regulations to which the Services might be subject and to notify Us as soon as You become aware of any such regulations.

9.5 If any of these terms and conditions shall be considered by a court to be unenforceable, that shall in no way affect the provision, validity or enforceability of the other terms and conditions which shall remain in full force and effect.

9.6 Any failure on Our part to enforce these terms and conditions shall not amount to a waiver of Our right to do so or acceptance of Your conduct which gives rise to Our rights as aforesaid.

9.7 These terms and conditions do not operate to create an agency, joint venture or partnership between You and Us.

9.8 We reserve the right to subcontract provision of parts of the Services to third parties selected by Us.

9.9 This Agreement is personal to You and You may not assign or sub-licence Your rights or obligations hereunder to any third party without Our prior written consent, which may be withheld or granted at our sole discretion.

9.10 This Agreement is between You and Us and nothing in this Agreement shall create or
confer any rights or other benefits on or in favour of any person who is not a party to this
Agreement whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.

9.11 All notices required to be given hereunder shall be sent by e-mail to a current e-mail
address of the party to receive such notice and provided the party sending such e-mail does
not receive a failure of delivery notice within 3 hours of sending such e-mail, shall be deemed
served on the day of sending if sent on a weekday between 9am and 5pm (UK time),
otherwise such notice shall be deemed served on the subsequent weekday.
All notices hereunder shall also be sent in hard copy by registered post to the address of the party to be served as set out on the Commercial Terms schedule.

9.12 These terms and conditions shall be governed and interpreted exclusively according to the laws of England and Wales and both parties agree that the English courts shall have exclusive jurisdiction in respect of any dispute arising hereunder.

June 2016.