OCEAN LYNK LIMITED
———————————————————————————————————————————————————————————————————
Terms and conditions for the supply of services
CONTENTS
__________________________________________________________________________________________________________________________________________
The Customer’s attention is particularly drawn to the provisions of clause 7 (Limitation of liability).
The following definitions and rules of interpretation apply in these Conditions.
- Definitions:
- Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
- Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
- Charges: Ocean Lynk’s (OL’s) charges for the Services as set out in the Work Order Form.
- Commencement Date: has the meaning given in clause 1.
- Conditions: these terms and conditions as amended from time to time in accordance with clause 4.
- Contract: the contract between OL and the Customer for the supply of Services in accordance with the Work Order Form and these Conditions.
- Customer: the person or firm who purchases the Services from OL as specified in the Work Order Form.
- Force Majeure Event: has the meaning given to it in clause 11.
- Ocean Lynk (OL): Ocean Lynk Limited registered in England and Wales with company number 15944565 whose registered office is at 38 Mill Street, Bedford MK40 3HD.
- Services: the services supplied by OL to the Customer as set out in the Work Order Form.
- Work Order Form: the order form setting out the Services and the Charges
- The Work Order Form constitutes an offer by OL to supply the Services in accordance with these Conditions, which shall be deemed to be accepted when the Customer signs the Work Order Form, at which point, and on which date the Contract shall come into existence (Commencement Date).
- These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
- OL shall supply the Services to the Customer in accordance with the Work Order Form in all material respects.
- OL shall use all reasonable endeavours to meet any performance dates for the Services specified in the Work Order Form, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
- OL reserves the right to amend the Services 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 OL shall notify the Customer in any such event.
- OL warrants to the Customer that the Services will be provided using reasonable care and skill.
- The Customer shall:
- co-operate with OL in all matters relating to the Services;
- provide OL with such access to its electronic communications systems and such information as OL may reasonably require to supply the Services and ensure that such information is complete and accurate in all material respects.
- If OL’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
- without limiting or affecting any other right or remedy available to it, OL shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays OL’s performance of any of its obligations;
- OL shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from OL’s failure or delay to perform any of its obligations as set out in this clause 2; and
- the Customer shall reimburse OL on written demand for any costs or losses sustained or incurred by OL arising directly or indirectly from the Customer Default.
5. Charges and payment
- The charges for Services shall be set out in the Work Order Form.
- OL reserves the right to:
- increase the charges for the Services on an annual basis with effect from each anniversary of the Commencement Date in line with the higher of 5% or the percentage increase in the Consumer Prices Index in the preceding 12-month period, and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Consumer Prices Index;
- OL shall invoice the Customer monthly in arrears for the Services.
- The Customer shall pay each invoice submitted by OL:
- within 14 days of the date of the invoice; and
- in full and in cleared funds to a bank account nominated in writing by OL, and time for payment shall be of the essence of the Contract.
- All amounts payable by the Customer 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 OL to the Customer, the Customer shall, on receipt of a valid VAT invoice from OL, pay to OL such additional amounts in respect of VAT as are chargeable on the supply of the Services, as applicable, at the same time as payment is due for the supply of the Services.
- If the Customer fails to make a payment due to OL under the Contract by the due date, then, without limiting OL’s remedies under clause 8, the Customer 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 6 will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
- All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. Data protection
- The following definitions apply in this clause 6:
- Controller, Processor, Personal Data: as defined in the Data Protection Legislation.
- Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.
- Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
- The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and OL is the Processor.
- The parties acknowledge that OL will process the Personal Data of the Customer (where the Customer is an individual) and Customer’s employees and clients (where Customer is a legal but not a natural person) in the provision of the Services.
- OL will process the Personal Data in accordance with its Privacy Policy which can be accessed here. The Customer’s attention is drawn in particular to the section of the Privacy Policy addressing the transfer of the Personal Data to OL’s sub-contractor in the Philippines.
- Without prejudice to the generality of clause 2, the Customer will ensure that it has all necessary consents and notices in place to enable lawful transfer of the Personal Data of its employees, and of its clients where applicable, to OL for the duration and purposes of the Contract.
7. Limitation of liability
- The limits and exclusions in this clause reflect the insurance cover OL has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess liability.
- References to liability in this clause 7 include every kind of liability arising under or in connection with the Contract including without limit liability in contract, tort (including negligence), breach of statutory duty, breach of Data Protection Legislation, breach of misrepresentation, restitution or otherwise.
- Nothing in the Contract limits any liability for:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation; or
- any liability that legally cannot be limited.
- Subject to clause 3, OL’s total liability to the Customer shall not exceed an amount equivalent to the Charges paid by the Customer in the 12 months preceding the date when the act or omission giving rise to the liability first occurred.
- This clause 5 sets out specific heads of excluded loss, and is subject to Clause 7.3:
- clause 5(c) identifies the kinds of loss that are not excluded. Subject to that, clause 7.5(b) excludes specified types of loss.
- The following types of loss are wholly excluded:
- loss of profits;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of use or corruption of software, data or information;
- loss of or damage to goodwill; and
- indirect or consequential loss.
- The following types of loss and specific loss are not excluded:
- wasted expenditure;
- additional costs of procuring and implementing replacements for, Services not provided in accordance with the Contract;
- losses incurred by the Customer arising out of or in connection with any third party claim against the Customer which has been caused by the act or omission of OL.
- This clause 7 shall survive termination of the Contract.
8. Termination
- Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party not less than two months’ written notice.
- 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:
- the other party commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
- 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), obtaining a moratorium, 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; or
- 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.
- Without affecting any other right or remedy available to it, OL may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
- Without affecting any other right or remedy available to it, OL may suspend the supply of Services if the Customer fails to pay any amount due under the Contract on the due date for payment.
9. Consequences of termination
- On termination of the Contract, the Customer shall immediately pay to OL all of OL’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, OL shall submit an invoice, which shall be payable by the Customer immediately on receipt.
- Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
10. Confidentiality
- Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party except as permitted by clause 2.
- Each party may disclose the other party’s confidential information:
- to its employees, officers, representatives, contractors or subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 10; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
- OL shall be entitled to use the Customer’s name and logo in its marketing materials, together with a brief description of the Services supplied to the Customer, unless the Customer has indicated that it does not consent to such use of its name and logo on the Work Order Form.
11. Force majeure
Neither party shall be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from a Force Majeure Event. If the period of delay or non-performance continues for 90 days, the party not affected may terminate the Contract by giving not less than 10 days’ written notice to the affected party.
12. General
12.1. Notices
- ny notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by email. Notices sent to OL shall be sent to the following email address: [email protected], and notices to the Customer shall be sent to the Billing email address indicated on the Work Order Form.
- Any notice shall be deemed to have been delivered at the time of transmission.
- This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
12.2. 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 right or remedy.
- 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.
12.3. Entire agreement
- The Contract constitutes the entire agreement between the parties.
- Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it has no claim for innocent or negligent misrepresentation based on any statement in the Contract.
12.4. Variation
- Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
12.5. 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.
12.6. 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.
