Notice to Client:
These Terms and Conditions Apply Conditions apply to all of the Services provided by Think Fluid LTD to you. If you do not wish to be bound by these Terms and Conditions, then you should not order or accept performance of the Services provided by Think Fluid LTD
The following definitions shall apply to this Agreement:
"Service Provider" means Think Fluid LTD.
"Client" or "You" means the party who Think Fluid LTD provides its services to.
"Services" means support services provided by the Service Provider as further described either (a) by email or (b) in writing (c) by telecommunications (d) by the Service Provider's websites (including, but not limited to www.thinkfluid.co.uk or w3.iassist-online.com) (e) remote access and through an authorised employee of the Service Provider. For the avoidance of doubt, any service provided to the Client by the Service Provider over any communication medium (email, telecommunications, online or SMS).
"Terms and Conditions", "Conditions", "Agreement" or "Contract" means the agreement between You and the Service Provider detailed in this agreement
"System" means "websites", "web applications", "licensed program", "software" or "licensed program materials" (a) all digital or material files provided by the Service Provider including documentation (i) the Service Provider or third party computer information, systems (on the world wide web or local network systems) or software (ii) digital images, database backup files, stock photographs, clip art, sounds or other artistic works ("Stock Files"); (iii) related explanatory written materials or files ("Documentation"); and (iv) fonts; and (b) upgrades, modified versions, updates, additions, and copies of the System, if any, licensed to the Client by the Service Provider (collectively, "Updates").
The Service Provider agrees to provide it's skill and experience to assist the Client in the performance of their business. The services may be technical in nature or include business operations, information technology, project management, business development, troubleshooting and other advice or support. In some cases these services will relate to Systems provide by the Service Provider.
The Service Provider is not bound to make site visits to the Client's premises. However at the Service Provider's own discretion, it may make such visits.
3. Confidential Information
The Client agrees (unless agreed otherwise in writing by the Service Provider) to maintain in confidence and not disclose, reproduce or copy any materials, documentation, specification or software in any form whatsoever provided to the Client in connection with the Services. The Client shall take all reasonable steps to ensure that its employees and any third parties are bound by the same obligations and that such obligations endure beyond any termination of employment with the Client.
4. Warranty and the service provider's liability
4.1 The Service Provider warrants to the Client that it will use all reasonable skill and care in carrying out the Services. There are no warranties, conditions, guarantees or representations whether express implied by statute or otherwise, oral or in writing except as provided in these Conditions.
4.2 Notwithstanding Condition 4.1 (above) all rights which the Client may have under the Consumer Protection Act 1987 and the Unfair Contract Terms Act 1977 are in addition to those set out in these Conditions.
4.3 In the event of a breach of the warranty in Condition 4.1 (above), the Service Provider’s sole liability shall be to re-perform at the Services which do not conform to the said warranty (e.g. reasonable skill and care).
4.4 If the Service Provider fails without cause to perform the Services in accordance with its obligations under these Conditions, the Service Provider will not be liable to any expense claimed by the Client or associated parties relating to the Services.
4.5 the Service Provider shall be liable for death or personal injury arising from its performance of the Services to the extent that it results from the negligence of the Service Provider.
4.6 The Client agrees that the Service Provider will not be liable for any loss caused by the Client's failure to perform its obligations as set out or referred to in these Conditions or for any act of the Client which is in contravention of these Conditions or advice given by the Service Provider.
4.7 Service Provider shall not in any event be liable for any indirect, special or consequential loss whether statutory or otherwise, howsoever arising (including but not limited to loss of anticipated profits or of data) in connection with or arising out of the Services, even if Service Provider shall have been advised of the possibility of such potential loss and shall not be liable for any loss.
4.8 Except in respect of the liability of the Service Provider for death or personal injury resulting from the negligence of the Service Provider or its employees or in respect of a claim for non payment of monies due, no action regardless of form arising out of the transactions in relation to these Conditions and Services may be brought by either party more than six (6) months after the cause of action has accrued.
4.9 The Client will indemnify the Service Provider against any claim made by the Client or associated parties arising from the services provided by the Service Provider.
4.10 The Service Provider aims to provide the service to the Client in a reasonable time. A reasonable time is defined by the Service Provider according to the scope and size of the said service.
5.1 This Agreement may be terminated:
5.1.1 by either party within 28 days of a written notice.
5.1.2 forthwith by either party if the other commits any material breach of any term of this agreement and which (in the case of a breach capable of being remedied) shall not have been remedied within 28 days of a written request to remedy the same;
5.1.3 forthwith by a party if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary agreement with Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if the trustee receiver administrative receiver or similar officer is appointed in respect of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other or for the making of an administrative order (otherwise than for the purpose of an amalgamation or reconstruction).
5.1.4 forthwith the Service Provider shall have the right to immediately terminate this Contract if the Client fails to perform any obligation required of the Client under this Agreement or if the Client becomes bankrupt or insolvent. This Agreement takes effect upon the Client's use of the Services and remains effective until terminated in accordance with Condition 5.
5.2 Any termination of this agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision herein which is expressly or by implication intended to come into or continue in force on or after such termination.
5.2.1 For the avoidance of doubt, clauses 3 and 4 shall survive the termination of this agreement.
This agreement shall be binding upon and serve for the benefit of the successors in title of the parties hereto.
The parties agree to submit any dispute under this Contract to binding arbitration in the United Kingdom.
8. Legal Representatives Fees
If any legal action is necessary to enforce this Contract, the Service Provider shall be entitled to reasonable legal fees, costs and expenses in addition to any other relief to which it may be entitled from the Client.
9. Limited Liability
Unless otherwise expressly stated herein, the Service Provider shall not be liable to Client for any consequential damages arising out of the Service Provider's breach of this Agreement.
Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class recorded delivery to the address of the Service Provider (or such other address or numbers as may have been notified) and any such notice or other document shall be deemed to have been served (if delivered) at the time of the delivery upon the expiration of 48 hours after posting.
Notices to the Service Provider: 431 Sidcup Rd, London SE9 4ET
11. Governing Law
This Agreement shall be governed by and construed under the laws of the United Kingdom.
12. Legal Proceedings, Venues and Services
The Service Provider consents and agrees that all legal proceedings relating to the subject matter of this Agreement shall be maintained in courts sitting within the United Kingdom, and the Service Provider consents and agrees that the venue for such proceedings shall lie exclusively with such courts. Service of process in any such proceeding may be made by certified mail, return receipt requested, directed to the respective party at the address at which it is to receive notice as provided herein.
13. Invalidity and Severability
If any provision of this Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision that achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
The waiver by either party of a breach or default of any of the provisions of this agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
15. Force Majeure
Neither party hereto shall be liable for any breach of its obligations resulting from causes beyond its reasonable control including but not limited to fire, strikes (of its own or other employees), insurrection or riots, embargoes, container shortages, wrecks, delays in transportation, inability to obtain supplies and raw materials requirements, or regulations of any civil military authority (an "Event of Force Majeure").
16. Period for Bringing Actions
No action, regardless of form, arising out of the transactions under this Agreement, may be brought by the Client more than six (6) months after the cause of action has occurred, or was discovered to have occurred.
17. Duration of this Agreement
This agreement shall continue until terminated in accordance with the provisions of clause 5 as set out in this agreement.
18. Complete Agreement
This Agreement sets forth the entire understanding of the parties as to its subject matter and may not be modified except by the Service Provider without prior notice. The Client executes this agreement upon continued use of the Services, with or without full knowledge of its content and significance and intending to be legally bound by the Contract.