MEMBERSHIP TERMS AND CONDITIONS
THE MEMBER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).
1. Interpretation
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
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 and as set out in the Subscription Statement.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.6.
Contract: the contract between the Supplier and the Member for the supply of Services in accordance with these Conditions.
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 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.
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.
Member: the person or firm who purchases Services from the Supplier.
Member Default: has the meaning set out in clause 4.2.
Membership Statement: the description or specification of the Services provided by the Supplier to the Member.
Order: the Member's order or request for Services, submitted in writing or telephone to the Supplier.
Reports: any report relating to the Services that is provided by the Supplier to the Member in any form.
Services: the services, including the Reports, supplied by the Supplier to the Member as set out in Membership Statement.
Supplier: Preston Baker and Associated Limited incorporated and registered in England and Wales with company number 07032389 whose registered office is at 101 Walmgate, York, England, YO1 9UA trading as “The Developer Network Association”.
VAT:value added tax chargeable under the Value Added Tax Act 1994.
1.2 Interpretation:
(a) a reference to legislation or a legislative provision:
(i) is a reference to it as amended, extended or re-enacted from time to time; and
(ii) shall include all subordinate legislation made from time to time under that legislation or legislative provision.
(b) Any words following the terms including, include, in particular, for exampleor 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.
(c) A reference to writingor written includes email but not fax.
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 to the Member a Membership Statement, at which point, and on that date the Contract shall come into existence.
2.3 The Supplier requires the Member to sign and return the Membership Statement to confirm its acceptance and understanding of the terms of this agreement. However, for the avoidance of doubt, the Member’s continuing use of the Services after receipt of the Membership Statement and these Conditions will constitute acceptance of the Contract, whether or not the Membership Statement is signed, dated and returned to the Supplier.
2.4 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.
2.5 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 law, trade custom, practice or course of dealing.
3. Supply of Services
3.1 The Supplier shall supply the Services to the Member in accordance with the Membership Statement in all material respects.
3.2 The Supplier reserves the right to amend the Services and/or the Membership Statement, 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.
3.3 The Supplier warrants to the Member that the Services will be provided using reasonable care and skill.
3.4 Following any amendments to the Services or the Membership Statement pursuant to clause 3.2, the Supplier may issue a revised Membership Statement to the Member incorporating the relevant amendments and such revised Membership Statement shall replace the previous Membership Statement in issue prior to such amendments and such previous Membership Statement shall cease to have effect with effect from the date of Member issuing such revised Membership Statement to the Member.
4. Member's obligations
4.1 The Member shall:
(a) ensure that the terms set out in the Membership Statement are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services; and
(c) 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.
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 Charges for the Services shall be set out in the Membership Statement.
5.2 The Supplier shall invoice the Member monthly in advance on the first Business Day of each month during which the Services are provided by the Supplier to the Member.
5.3 The Member shall pay each invoice submitted by the Supplier:
(a) on receipt of the invoice via a recurring payment method agreed with the Supplier and confirmed in writing with the Member; 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.
5.4 All amounts payable by the Member under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time. 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.
5.5 If the Member fails to make a payment due to the Supplier under the Contract by the due date, then, 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 5.5 will accrue each day at 2.75% 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%.
5.6 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. Intellectual property rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services, including the Reports (other than Intellectual Property Rights in any materials provided by the Member) shall be owned by the Supplier.
6.2 The Supplier grants to the Member, or shall procure the direct grant to the Member of, a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual and irrevocable licence to use and copy the Reports (excluding materials provided by the Member) for the purpose of receiving and using the Services and the Reports in its business.
6.3 The Member shall not sub-license, assign or otherwise transfer the rights granted in clause 6.2.
7. Data protection
Both parties will comply with all applicable requirements of the Data Protection Legislation.
8. Limitation of liability: THE MEMBER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
8.1 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
8.3 Nothing in this clause 8 shall limit the Member's payment obligations under the Contract.
8.4 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.5 Subject to clause 8.2, and clause 8.4, the Supplier's total liability to the Member, including in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the lower of:
(a) an amount equal to the total Charges paid by the Member; or
(b) an amount equal to the total Charges paid by the Member in the previous twelve months,
prior to the alleged breach occurring in relation strictly to the Membership Statement under which the alleged breach occurred.
8.6 Subject clause 8.2, clause 8.3 and clause 8.4, this clause 8.6 sets out the types of loss that are wholly excluded:
(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) indirect or consequential loss.
8.7 The Supplier has given commitments as to compliance of the Services with relevant provisions in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.8 Unless the Member notifies the Supplier that it intends to make a claim in respect of an event within the notice period referred to in this clause 8.8, the Supplier shall have no liability for that event. The notice period for an event shall start on the date on which the Member became, or ought reasonably to have become, aware of the event having occurred and shall expire six months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
8.9 This clause 8 shall survive termination of the Contract.
9. Termination
9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party written notice for the duration set out in the Membership Statement.
9.2 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 breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 21 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), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(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.
9.3 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 the Member fails to pay any amount due under the Contract on the due date for payment.
9.4 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:
(a) the Member fails to pay any amount due under the Contract on the due date for payment;
(b) the Member becomes subject to any of the events listed in clause 9.2(c) or clause 9.2(d), or the Supplier reasonably believes that the Member is about to become subject to any of them; and
(c) the Supplier reasonably believes that the Member is about to become subject to any of the events listed in clause 9.2(b).
10. Consequences of termination
10.1 On termination or expiry of the Contract:
(a) each Membership Statement shall also terminate immediately and automatically;
(b) the Supplier shall complete and submit to the Member any Report which has been ordered by the Member and started by the Supplier prior to termination or expiry of the Contract; and
(c) the Member shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and any interest and, in respect of any Services, supplied or to be 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.
10.2 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.
10.3 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.
11. General
11.1 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.
11.2 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, delegate, 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.
11.3 Confidentiality.
(a) Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, or, in the case of the Member, the business, affairs, customers, clients, or suppliers of any other Member of the Supplier for the same or similar services to the Services, except as permitted by clause 11.3(b).
(b) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives, contractors, 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, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 11.3; 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.
11.4 Report Disclaimer.
(a) Each Report contains general comments and information only. Such comments and information may contain inaccuracies and typographical and other errors, or may be out of date.
(b) The Supplier makes no representations, warranties, or guarantees, whether express or implied, that each Report or the comments and information contained therein is complete, accurate, or useful to the Member, nor that each Report is merchantable or fit for purpose.
(c) Comments and information within each Report are not intended to be advice on which the Member can reply.
(d) The Member must obtain professional or specialist advice before taking, or refraining from any action on the basis of any comments or information contained within a Report.
(e) The Supplier disclaims any and all liability and responsibility arising from any reliance by the Member, or any of their agents or advisors, on any comments, or information contained within a Report.
11.5 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.
11.6 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).
11.7 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.
11.8 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this Contract deleted under this clause 11.8 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.9 Notices.
(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 email to the address specified in the Membership Statement.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) 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
(iii) if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 11.9(c)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause 11.9 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.
11.10 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.
11.11 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.
11.12 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.