January 2018
1. Definitions and interpretation:
1.1 In these Conditions the following definitions apply:
“Applicable Laws” means all applicable laws, enactments, regulations, regulatory policies, guidelines, codes and such authorisations and all other approvals, permits and authorities as are required from time to time for the performance of the obligations under or in connection with the Contract;
“Bribery Laws” means the Bribery Act 2010 and associated guidance published by the Secretary of State for Justice under the Bribery Act 2010 and all other applicable UK legislation, statutory instruments and regulations in relation to bribery or corruption and any similar or equivalent legislation in any other relevant jurisdiction;
“Business Day” means a day other than a Saturday, Sunday or bank or public holiday;
“Conditions” means FMB’s terms and conditions set out in this document;
“Confidential Information” means any commercial, financial or technical information, information relating to the Services, plans, know-how or trade secrets which is obviously confidential or has been identified as such, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;
“Connections Services” means the recurring performance of Services by FMB for the Customer as part of a Connections package as set out in the Order;
“Connections Services Period” means the period of time set out in the Order during which FMB shall perform the Connections Services for the Customer;
“Contract” means the agreement between FMB and the Customer for the supply and purchase of Services incorporating these Conditions and the Order;
“Control” has the meaning given to it in section 1124 of the Corporation Tax Act 2010;
“Copy Deadline” means any date notified by the FMB to the Customer:
a) prior to which the Customer must provide any Customer Materials to FMB for publication and/or printing as required for performance of or otherwise relating to the Services; or
b) after which the Customer cannot cancel the Order for Services relating to an event, as the case may be;
“Customer” means the person who purchases the Services from FMB and whose details are set out in the Order;
“Customer Materials” means all copy, documents, information, items and materials in any form (whether owned by the Customer or a third party) provided by the Customer to FMB;
“FMB” means the Federation of Master Builders Limited, a company limited by guarantee incorporated in England and Wales under number 368163 whose registered office is at Star House, Star Hill, Rochester, Kent, ME1 1UX (VAT number is 673053834);
“Force Majeure” means an event or sequence of events beyond a party's reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including strikes or other industrial disputes involving FMB’s or its suppliers’ workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;
“Intellectual Property Rights” means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get- up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights and, in each case:
(a) whether registered or not;
(b) including any applications to protect or register such rights;
(c) including all renewals and extensions of such rights or applications;
(d) whether vested, contingent or future;
(e) to which the relevant party is or may be entitled, and
(f) in whichever part of the world existing;
“Order” means the order for the Services from FMB placed by the Customer in substantially the same form as set out in FMB’s order form/quotation;
“Price” has the meaning set out in clause 3.1;
“Services” means the Services set out in the Order (or as amended in accordance with these Conditions) and to be performed by FMB for the Customer, including Standalone Services, Sponsorship Services and/or Connections Services as the case may be;
“Sponsorship Services” means the performance of Services by FMB for the Customer as part of a Sponsorship Package, such Sponsorship Package being identified on the Order;
“Sponsorship Package” means a package for the provision of Sponsorship Services, as determined or amended by FMB from time to time;
“Standalone Services” means a one-off performance of Services by FMB for the customer as set out in the Order;
“Start Date” means the date of commencement of the Standalone Services, Sponsorship Services and/or the Connections Services, as the case may be, as set out in the Order;
“Termination Fee” has the meaning set out in clause 17.1;
“VAT” means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Services.
1.2 In these Conditions, unless the context requires otherwise:
1.2.1 any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;
1.2.2 a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
1.2.3 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.4 a reference to a ’company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
1.2.5 a reference to a gender includes each other gender;
1.2.6 words in the singular include the plural and vice versa;
1.2.7 any words that follow 'include', 'includes', 'including', ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.2.8 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form;
1.2.9 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time; and
1.2.10 a reference to legislation includes all subordinate legislation made from time to time under that legislation.
2. Application of these conditions
2.1 These Conditions apply to and form part of the Contract between FMB and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer's purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that FMB otherwise expressly agrees in writing. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer’s that is inconsistent with these Conditions.
2.3 Except as expressly set out in these Conditions, no variation of these Conditions or to an Order or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of FMB.
2.4 Each Order by the Customer to FMB shall be an offer to purchase Services subject to these Conditions.
2.5 An Order may be withdrawn or amended by the Customer at any time before acceptance by FMB. If FMB is unable to accept an Order, it shall notify the Customer as soon as reasonably practicable.
2.6 FMB operate on a "first come first served basis" where there is a maximum number of services available. FMB may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Services shall arise, until the earlier of:
2.6.1 FMB’s written acceptance of the Order; or
2.6.2 FMB performing the Services or notifying the Customer that they are ready to be performed (as the case may be).
2.7 Rejection by FMB of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
2.8 FMB may issue quotations to the Customer from time to time. Any quotation shall not constitute an offer and is only valid for a period of 30 days from its date, provided that FMB has not withdrawn it.
2.9 Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Contract.
2.10 Any typographical, clerical or other error or omission in any sales literature, marketing and other promotional material relating to the Services, quotation, price list, rate card, acceptance of Order, invoice or other document or information issued by FMB shall be subject to correction without any liability on the part of FMB.
3. Price
3.1 The price for the Services shall be as set out in the Order or, in default of such provision, shall be calculated in accordance with FMB's scale of charges as advised by FMB before the date the Order is made (Price).
3.2 The Prices are exclusive of VAT (or equivalent sales tax).
3.3 The Customer shall pay any applicable VAT to FMB on receipt of a valid VAT invoice.
4. Payment
4.1 FMB shall invoice the Customer for the Services at any time on or after FMB’s acceptance of the Order in accordance with clause 2.6.
4.2 The invoices shall be payable by the Customer:
4.2.1 for Standalone Services:
4.2.1.1 in full without deduction or set-off, in cleared funds immediately on the later of the date of FMB’s acknowledgement of the Order or the date of the Customer’s receipt of the invoice. For the avoidance of doubt payment for Standalone Services is payable in advance of the Standalone Services being provided; and
4.2.1.2 to the bank account nominated by FMB;
4.2.2 for Sponsorship Services:
4.2.2.1 in full without deduction or set-off, in cleared funds immediately on the later of the date of FMB’s acknowledgement of the Order or the date of the Customer’s receipt of the invoice. For the avoidance of doubt payment for Sponsorship Services is payable in advance of the Sponsorship Services being provided; and
4.2.2.2 to the bank account nominated by FMB.
4.2.3 for Connections Services:
4.2.3.1 in full without deduction or set-off, in cleared funds annually in advance on the Start Date and on each subsequent anniversary of the Start Date during the Connections Services Period; and
4.2.3.2 to the bank account nominated by FMB.
4.3 FMB may issue and send separate invoices where one Order contains Standalone Services, Sponsorship Services and/or Connections Services.
4.4 Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:
4.4.1 FMB may, without limiting its other rights, charge interest on such sums at 4% a year above the base lending rate of FMB’s bank from time to time in force, and
4.4.2 interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
5. Performance
5.1 An Order shall specify whether the Services are to be:
5.1.1 Standalone Services; or
5.1.2 Sponsorship Services; or
5.1.3 Connections Services, in which case the Order shall also specify the Connections Services Period.
5.2 Connections Services give the Customer the benefit of added value services, which if applicable shall be as specified in the Order (or as amended in accordance with these Conditions), subject to:
5.2.1 the Customer meeting the minimum spend as specified in the Order (before the addition of any added value services) in each year of the Connections Services Period;
5.2.2 the Customer having paid FMB in full for the Services to be provided during each year of the Connections Services Period; and
5.2.3 the amount of any added value services being utilised by the Customer within the second year of the Connections Services Period. Any added value services not so utilised will be forfeited and cancelled by FMB without any liability to the Customer.
5.3 If the Customer does not meet the minimum spend referred to in clause 5.2.1, FMB shall be entitled to invoice the Customer for any added value services already received by the Customer free of charge, as if such added value services were Standalone Services and any such invoices shall be payable by the Customer in accordance with clause 4.2.1.
5.4 FMB shall have at its absolute discretion the right to place, omit, suspend or change the position of any of the Customer Materials accepted for publication. Furthermore, FMB reserves the right to refuse to publish any of the Customer Materials for any or no reason whatsoever without any liability to the Customer.
5.5 The Services shall be deemed performed on completion of the performance of the Services as specified in the Order, or as varied in accordance with these Conditions.
5.6 Time of performance of the Services is not of the essence. FMB shall use its reasonable endeavours to meet estimated dates for performance, but any such dates are approximate only.
5.7 FMB reserves the right to amend the Services (or any part of them including any value added services) to be provided and/or the date(s) on which they are provided if necessary:
5.7.1 to comply with any applicable law or regulatory requirement;
5.7.2 as a result of Force Majeure; or
5.7.3 if the amendment will not materially affect the nature or quality of the Services, and
FMB shall notify the Customer as soon as reasonably practicable in any such event and the Customer shall be responsible for any losses or expenses incurred by the Customer (for example, payments to other suppliers).
5.8 FMB shall not be liable for any delay in or failure of performance caused by:
5.8.1 the Customer's delay in or failure to: (i) prepare the Customer Materials as required for the performance of the Services, (ii) make available to FMB the Customer Materials in accordance with FMB's instructions, including any copy to be supplied (including any artwork) to FMB prior to the Copy Deadline, or (iii) provide FMB with timely or adequate instructions for performance of or otherwise relating to the Services;
5.8.1 any defect in any of the Services arising from any information, drawing, design, proof or specification supplied by the Customer;
5.8.3 any act or omission of the Customer, its agents, subcontractors, consultants or employees; or
5.8.4 Force Majeure.
5.9 If FMB does not receive the Customer Materials before the relevant Copy Deadline, FMB reserves the right to publish any previous Customer Materials used by FMB or publish the name and address details of the Customer only and FMB shall not be responsible for any errors or omissions arising. In either case, the Customer shall be pay the Price, in full, for the scheduled Service(s).
6. Obligations
6.1 FMB shall:
6.1.1 supply the Services with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II s 13;
6.1.2 comply with its obligations under the Contract; and
6.1.3 comply with all Applicable Laws.
6.2 The Customer shall:
6.2.1 comply with the reasonable requirements of and co-operate with FMB in its provision of the Services;
6.2.2 provide FMB in a timely manner, and in particular prior to the relevant Copy Deadline, all Customer Materials reasonably required by FMB in connection with the provision of the Services and ensure that they are accurate and complete;
6.2.3 be solely responsible for ensuring the accuracy of any Customer Materials supplied, including any copy supplied (including any artwork) to FMB prior to the Copy Deadline; and
6.2.4 comply with all Applicable Laws.
6.3 The Customer warrants to FMB that:
6.3.1 that it has provided FMB with all relevant, full and accurate information as to the Customer Materials and the Customer’s business and needs;
6.3.2 it has the right to publish the contents of any of the Customer Materials;
6.3.3 none of the Customer Materials contravene any Applicable Laws;
6.3.4 the Customer Materials comply with the Advertising Codes of the Advertising Standards Authority and any related Advertising Guidance in force from time to time.
6.4 Except as set out in this clause 6:
6.4.1 FMB gives no warranties and makes no representations in relation to the Services; and
6.4.2 shall have no liability for its failure to comply with the warranty in clause 6.1, and FMB excludes all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982), whether express or implied by statute, common law or otherwise to the extent permitted by law.
7. Intellectual Property
7.1 FMB acknowledges and agrees that any Intellectual Property Rights in the Customer Materials belong to the Customer, or a third party, as the case may be.
7.2 The Customer warrants, represents and undertakes that the Customer Materials will not infringe any Intellectual Property Rights.
7.3 FMB warrants, represents and undertakes that any materials it provides (if any) will not infringe any Intellectual Property Rights.
7.4 The Customer grants to FMB a worldwide, royalty-free, non-exclusive licence to use the Intellectual Property Rights in the Customer Materials for the purposes of performing the Services.
7.5 The Customer grants to FMB a worldwide royalty free licence to reproduce and display any of the Customer Materials, artwork, trade marks and brand features contained in any of the Services printed in its publications.
7.6 Except as expressly set out in the Order or these Conditions, no Intellectual Property Rights of either party are transferred or licensed as a result of the Contract.
7.7 Each party (Indemnifying Party) shall indemnify and keep indemnified and hold harmless the other (Indemnified Party) from and against any losses, damages, liability, costs (including reasonable legal and other professional fees and expenses) and expenses incurred by the Indemnified Party as a result of or in connection with any action, demand or claim in respect of (i) the Customer Materials, or (ii) the Services, as the case may be, provided by the Indemnifying Party where such infringes the Intellectual Property Rights of any third party (IPR Claim).
7.8 The Indemnified Party shall:
7.8.1 notify the Indemnifying Party in writing setting out full details of any IPR Claim of which it has notice as soon as reasonably possible;
7.8.2 not make any admission of liability or agree any settlement or compromise the relevant IPR Claim without the prior written consent of the Indemnifying Party (which shall not be unreasonably withheld or delayed);
7.8.3 let the Indemnifying Party at its request and expense have conduct of or settle all negotiations and litigation arising from the IPR Claim; and
7.8.4 at the Indemnifying Party's request and own expense, give the Indemnifying Party all reasonable assistance in the circumstances described above.
7.9 If any IPR Claim is made or is reasonably likely to be made, the Indemnifying Party may at its option:
7.9.1 procure for the Indemnified Party the right to continue receiving the benefit of the relevant Customer Materials or Services, as the case may be; or
7.9.2 modify or replace the infringing part of the Customer Materials or Services, as the case may be, so as to avoid the infringement or alleged infringement, provided the Customer Materials or Services, as the case may be, remain in material conformance to their requirements under the Contract.
7.10 FMB's obligations under clause 7.7 shall not apply to Services modified or used by the Customer other than in accordance with the Contract or FMB’s instructions. The Customer shall indemnify FMB against all losses, damages, liability, costs and expenses (including legal and other professional fees and expenses) incurred by FMB in connection with any claim arising from such modification or use.
8. Confidentiality
8.1 Each party shall keep confidential all Confidential Information received from the other party and, except as permitted by clause 8.2, shall not use or disclose the other party's Confidential Information to any person.
8.2 A party may:
8.2.1 disclose any Confidential Information to any of its employees, officers, representatives or advisers (Representatives) who need to know the relevant Confidential Information for the purposes of the performance of any obligations under the Contract, provided that such party must ensure that each of its Representatives to whom Confidential Information is disclosed is aware of its confidential nature and agrees to comply with this clause 8 as if it were a party;
8.2.2 disclose any Confidential Information as may be required by law, any court, any governmental, regulatory or supervisory authority (including any securities exchange) or any other authority of competent jurisdiction to be disclosed; and
8.2.3 use Confidential Information only to perform any obligations under the Contract.
8.3 Each party recognises that any breach or threatened breach of this clause 8 may cause irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages, the parties agree that the non-defaulting party may be entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
8.4 The provisions of this clause 8 shall not apply to:
8.4.1 any information which was in the public domain at the date of the Contract;
8.4.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement; or
8.4.3 any information which is independently developed by the recipient without using information supplied by disclosing party.
8.5 This clause shall remain in force for a period of five years from the date of termination or expiry of the Contract or completion of the Services, as the case may be.
9. Anti-Bribery
9.1 For the purposes of this clause 9 the expressions 'adequate procedures' and 'associated with' shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.
9.2 Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable endeavours to ensure that:
9.2.1 all of that party’s personnel;
9.2.2 all others associated with that party; and
9.2.3 all of that party’s subcontractors;
involved in performing the Contract so comply.
9.3 Without limitation to clause 9.2, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
9.4 Each party shall immediately notify the other as soon as it becomes aware of a breach or possible breach of any of the requirements in this clause 9.
9.5 Any breach of this clause 9 by the Customer shall be deemed a material breach of the Contract and shall entitle FMB to terminate the Contract with immediate effect.
10. Anti-Slavery
10.1 The Customer undertakes, warrants and represents that:
10.1.1 neither the Customer nor any of its officers, employees, agents or subcontractors has:
10.1.1.1 committed an offence under the Modern Slavery Act 2015 (a MSA Offence); or
10.1.1.2 been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or
10.1.1.3 is aware if any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;
10.1.2 it shall comply with the Modern Slavery Act 2015; and
10.1.3 it shall notify FMB immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of Customer’s obligations under clause 10.1. Such notice shall set out full details of the circumstances concerning the breach or potential breach of the Customer’s obligations.
10.2 Any breach of clause 10.1 by the Customer shall be deemed a material breach of the Contract and shall entitle FMB to terminate the Contract with immediate effect.
11. Indemnity and insurance
11.1 The Customer shall indemnify, and keep indemnified, FMB from and against any losses, damages, liability, costs (including legal and other professional fees and expenses) and expenses incurred by FMB as a result of or in connection with the Customer’s breach of any of the Customer’s obligations under the Contract.
11.2 The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom to cover its obligations under these Conditions. On request, the Customer shall supply, so far as is reasonable, evidence of the maintenance of the insurance and all of its terms from time to time applicable. The Customer shall on request assign to FMB the benefit of such insurance.
12. Limitation of liability
12.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 12.
12.2 Subject to clauses 12.3, 12.4 and 12.5, FMB’s total aggregate liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation or otherwise) shall not exceed the Price paid by the Customer under the Contract.
12.3 Subject to clauses 12.4 and 12.5, FMB shall not be liable for consequential, indirect or special losses.
12.4 Subject to clause 12.5, FMB shall not be liable for any of the following (whether direct or indirect):
12.4.1 loss of profit;
12.4.2 loss of use or corruption of data;
12.4.3 loss of use;
12.4.4 loss of production;
12.4.5 loss of contract;
12.4.6 loss of opportunity;
12.4.7 loss of savings, discount or rebate (whether actual or anticipated);
12.4.8 harm to reputation or loss of goodwill.
12.5 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
12.5.1 death or personal injury caused by negligence;
12.5.2 fraud or fraudulent misrepresentation;
12.5.3 any other losses which cannot be excluded or limited by applicable law.
13. Prize draws and promotions
13.1 Any prize draws or promotions that take place at a FMB event will be subject to separate conditions, to be made available to entrants. Please note that FMB may or may not be the promoter of the prize draw or promotion. If FMB is the promoter, this will be confirmed in the applicable prize draw/promotion conditions.
13.2 If FMB is not the promoter of the prize draw or promotion, FMB shall have no liability in respect of any cancellation, suspension, or amendment of the prize or promotion. If FMB is the promoter, FMB reserves the right to extend, hold void, cancel, suspend, or amend the relevant prize or promotion or any part of it without prior notice or compensation where it becomes necessary to do so.
13.3 Subject to clause 12.5, in all cases FMB will not in any circumstances be responsible or liable to compensate the winner or accept any liability for any loss, damage, personal injury or death occurring as a result of taking up the prize except where it is caused by the negligence of FMB.
14. Data protection
14.1 Each party shall comply with all the obligations imposed on a controller under all applicable data protection and privacy legislation in force from time to time in the UK, or as applies to the party, including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended (“Data Protection Legislation”).
14.2 Any breach of the Data Protection Legislation by the Customer shall be deemed a material breach of the Contract and shall entitle FMB to terminate the Contract with immediate effect.
15. 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 results from Force Majeure.
16. Term and termination
16.1 The Contract shall commence on the Start Date and shall continue until:
16.1.1 completion of the Standalone Services;
16.1.2 completion of the Sponsorship Services; or
16.1.3 the expiry of the Connections Services Period;
unless, in either case, terminated earlier in accordance with this clause 14.
16.2 FMB may terminate the Contract with immediate effect at any time by giving notice in writing to the Customer if the Customer:
16.2.1 has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within 30 days after FMB has given notification that the payment is overdue;
16.2.2 acts in any manner and/or complaints are made about a Customer’s products or services which, in the opinion of FMB, brings or is likely to bring the Customer and/or FMB into disrepute and/or is materially adverse to the interests of FMB;
16.2.3 commits a material breach of any material term of the Contract and (if that breach is remediable) fails to remedy that breach within a period of 10 Business Days of written notice to do so;
16.2.4 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
16.2.5 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986;
16.2.6 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
16.2.7 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
16.2.8 has a resolution passed for its winding up;
16.2.9 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
16.2.10 is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced;
16.2.11 has a freezing order made against it;
16.2.12 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items; or
16.2.13 is subject to any events or circumstances analogous to those in clauses 16.2.5 to 16.2.12 in any jurisdiction.
16.3 Notwithstanding clause 16.2 and without prejudice to any other rights or remedies it may have, FMB may suspend provision of the Services if the Customer fails to pay the Price by the due date for payment.
16.4 FMB may cancel all or any part of the Services (for example a specific event) in the event of those Services becoming unavailable due to Force Majeure or for any other reason, in which case:
16.4.1 FMB shall use every effort to notify the Customer as soon as is reasonably practical;
16.4.2 FMB may revise the Services to be provided in accordance with clause 5.7, in which case FMB will attempt to offer the Customer alternative Services which would still provide value for the Customer (for example, virtual/hybrid solutions as alternatives to the Services, or parts of the Services, that would have been available at a face to face event). If FMB is able to provide alternative Services, FMB will provide the Customer with details of the changes to the Services in accordance with clause 5.7;
16.4.3 if, as a result of such events, in FMB’s reasonable opinion it is not able to offer alternative Services, FMB’s only liability to the Customer will be to refund to the Customer the Price paid (if any) by the Customer in respect of any Services which have not yet been provided at the point of cancellation to reflect any material restriction in the benefit or value of the Services received by the Customer overall; and
16.4.4 the Customer shall be responsible for any additional losses or expenses incurred by the Customer (for example, payments to other suppliers).
16.5 FMB may terminate the Contract for convenience by providing not less than 10 Business Days’ written notice to the Customer.
16.6 The Customer may terminate the Contract for Connections Services:
16.6.1 with FMB’s prior written consent; or
16.6.2 if FMB commits a material breach of any material term of the Contract and (if that breach is remediable) fails to remedy that breach within a period of 10 Business Days of written notice to do so.
16.7 The Customer may terminate the Contract for Sponsorship Services by providing not less than 3 months’ written notice to FMB in advance of the relevant event or Copy Deadline and paying to FMB the relevant Termination Fee in accordance with clause 17.1.
16.8 The Customer may terminate the Contract for Standalone Services:
16.8.1 where an event forms part of the Standalone Services, by providing not less than 3 months’ written notice to FMB in advance of the event and paying to FMB the relevant Termination Fee in accordance with clause 17.1;
16.8.2 where advertising forms part of the Standalone Services, by providing not less than 30 days’ written notice to FMB in advance of the Copy Deadline and paying to FMB the relevant Termination Fee in accordance with clause 17.1;
16.8.3 for all other Standalone Services, by providing not less than 30 days’ written notice to FMB and paying to FMB the relevant Termination Fee in accordance with clause 17.1; or
16.8.4 if FMB commits a material breach of any material term of the Contract and (if that breach is remediable) fails to remedy that breach within a period of 10 Business Days of written notice to do so.
16.9 If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle FMB to terminate the Contract under this clause 16, it shall immediately notify FMB in writing.
17. Consequences of termination
17.1 Upon termination by the Customer of Standalone Services the Customer shall be liable to pay a Termination Fee as follows:
| Type of service: | Length of written notice given by the Customer: | Termination Fee payable by the Customer: |
| Where an event forms part of the Services | 12 months or more prior to the event | nil (FMB will refund the Price in respect of the terminated Standalone Service, if already paid to the Customer). |
| Between 6 and 12 months prior to the event | 50% of the Price (FMB will refund 50% of the Price in respect of the terminated Standalone Service, if already paid to the Customer). | |
| Between 3 and 6 months prior to the event | 75% of the Price (FMB will refund 25% of the Price in respect of the terminated Standalone Service, if already paid to the Customer). | |
| Less than 3 months prior to the event | 100% of the Price (No refund of the Price will be made, if already paid by the Customer). | |
| Where advertising forms part of the Services | 60 days or more prior to the Copy Deadline | nil (FMB will refund the Price in respect of the terminated Standalone Service, if already paid to the Customer). |
| Between 30 and 60 days prior to the Copy Deadline | 50% of the Price (FMB will refund 50% of the Price in respect of the terminated Standalone Service, if already paid to the Customer). | |
| Less than 30 days prior to the Copy Deadline | 100% of the Price (No refund of the Price will be made, if already paid by the Customer). | |
| For all other Standalone or Sponsorship Services | In all cases of cancellation | 100% of the Price (No refund of the Price will be made, if already paid by the Customer). |
17.2 Without prejudice to clause 12, clause 17.1 and clause 17.3, upon termination by the Customer:
17.2.1 FMB shall not be liable to the Customer for any refund or reimbursement of the Price already paid by the Customer whether for Standalone Services, Sponsorship Services and/or Connections Services; and
17.2.2 any outstanding balance owed by the Customer shall become due and payable immediately at the date of expiry of the relevant notice.
17.3 Upon termination or expiry of the Contract:
17.3.1 the Customer will make no further use of the logo of FMB, if the Services entitled it to do so;
17.3.2 all outstanding invoices and other sums owed by the Customer to FMB shall become due and payable immediately at the date of expiry or termination; and
17.3.3 each party will return or (at the other's request) securely destroy all Confidential Information and other property of the other then in its possession or control.
17.4 Termination or expiry of the Contract shall not affect any accrued rights and liabilities at any time up to the date of termination or expiry.
17.5 Any provision of these Conditions which expressly or by implication is intended to continue in force after termination or expiry will do so notwithstanding termination or expiry of the Contract.
18. Notices
18.1 Any notice given by a party under these Conditions shall be in writing and in English, and be sent to the relevant party at the address set out in the Order.
18.2 Notices may be given, and are deemed received:
18.2.1 by hand: on receipt of a signature at the time of delivery;
18.2.2 by Royal Mail Recorded Signed For post: at 9.00 am on the second Business Day after posting;
18.2.3 by email for advertising services only: on receipt of a delivery receipt email from the correct address; and
18.2.4 for all other Services, by email provided confirmation is sent by first class post: on receipt of a delivery receipt email from the correct address.
18.3 Any change to the contact details of a party as set out in the Contract shall be notified to the other party in accordance with clause 18.1 and shall be effective:
18.3.1 on the date specified in the notice as being the date of such change; or
18.3.2 if no date is so specified, two Business Days after the notice is deemed to be received.
18.4 This clause does not apply to notices given in legal proceedings or arbitration.
19. Cumulative remedies
The rights and remedies provided in the Contract for FMB only are cumulative and not exclusive of any rights and remedies provided by law.
20. Entire agreement
20.1 The parties agree that the Contract constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
20.2 Each party acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
20.3 Nothing in these Conditions purports to limit or exclude any liability for fraud.
21. Assignment
The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without FMB’s prior written consent.
22. Set off
22.1 Without prejudice to any other rights or remedies available to FMB under the Contract or otherwise, FMB shall be entitled at any time and without notice to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract or under any other contract which FMB has with the Customer against any liability of the Customer to FMB, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract.
22.2 The Customer shall pay all sums that it owes to FMB under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
23. No partnership or agency
The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
24. Severance
24.1 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
24.2 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
25. Waiver
25.1 No failure, delay or omission in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
24.2 No single or partial exercise of any right, power or remedy provided by law or under the Contract shall prevent any future exercise of it or the exercise of any other right, power or remedy.
26. Conflicts with contract
If there is a conflict between the terms contained in the Conditions and the terms of the Order, the terms of the Conditions shall prevail.
27. Third party rights
A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
28. Governing law
The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
29. Jurisdiction
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).