Terms and Conditions

STRUTO LTD TERMS AND CONDITIONS

STRUTO LTD is incorporated and registered in England and Wales with company number 07587184 whose registered office is at B1 Vantage Point, Old Gloucester Road, Hambrook, BS16 1GW (STRUTO).

By signing up to these Terms and Conditions (Terms) you agree that you are accepting these Terms and any associated Statement of Works (SoW) that is appended to them either now or at any point in the future. You waive any right you might otherwise have to rely on any term endorsed upon, delivered with or contained in any of your documents that is inconsistent with these Terms or any associated SoW.

We recommend that you print a copy of these Terms and any associated SoW for your future reference.

Interpretation

The following definitions and rules of interpretation apply in these Terms:

Applicable Data Protection Laws: means:

To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.

The Retained EU Law which relates to the protection of personal data.

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 5.30 pm on any Business Day.

Change Control Process: the change control process set out in condition 13

Change Order: has the meaning given in condition 1

CLIENT's Equipment: any equipment, including tools, systems, cabling or facilities, provided by the CLIENT, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Works including any such items specified in a SoW.

CLIENT Materials: all documents, information, items and materials in any form, whether owned by the CLIENT or a third party, which are provided by the CLIENT to STRUTO in connection with the Works, including the items provided pursuant to condition 1(d).

CLIENT’S Representative: the representative of the CLIENT appointed by the CLIENT in accordance with condition 4.1(b).

Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.

Deliverables: any output of the Works to be provided by STRUTO to the CLIENT as specified in a SoW and any other documents, products and materials provided by STRUTO to the CLIENT in relation to the Works (excluding STRUTO's Equipment).

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks 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 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.

Milestone: a date by which a part or all of the Works is to be completed, as set out in a SoW (if any).

Project: the overall project or any particular phase of the Project (as applicable) to which the Services relates as more particularly described in the relevant SoW.

Retained EU Law: EU law defined by section 20(1) of the European Union (Withdrawal) Act 2018 (EUWA) as any direct EU legislation which forms part of domestic law of England and Wales by virtue of section 3 of the EUWA, as modified from time to time, and including any instruments made under from 1^st January 2021.

Services: The services to be provided by STRUTO as set out in the relevant SoW.

SoW Charges: the sums payable for the Works as set out in a SoW.

SoW: a detailed plan, agreed in accordance with condition 2, describing the Services to be provided by STRUTO, the timetable for their performance and the related matters as signed off between STRUTO and the CLIENT.

STRUTO’s Representative: the representative of STRUTO appointed by STRUTO to manage the day to day running of the Project.

UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.

Works: the Services which are provided by STRUTO under a SoW, including services which are incidental or ancillary to the Works.

Condition headings shall not affect the interpretation of these Terms.

A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

Unless the context otherwise requires, a reference to one gender shall include a reference to the other gender.

Unless expressly provided otherwise in these Terms, a reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.

Unless expressly provided otherwise in these Terms, a reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provision.

A reference to writing or written does not include email.

Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

A reference to these Terms or to an SoW or to any other document is a reference to these Terms, the SoW or such other document, in each case as varied or novated from time to time.

Any words following the terms including, include, in particular, for example or 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.

Commencement and duration

A contract shall be created between the parties which will be governed by these Terms and any additional terms and conditions set out in the relevant SoW which shall take effect on the date when the CLIENT signs off on these Terms as being accepted and where both parties sign off on the relevant SoW. Such contract shall continue in force until the Project is either completed or terminated in accordance with condition 14 (Termination).

STRUTO's responsibilities

STRUTO shall use reasonable endeavours to provide the Works, and deliver the Deliverables to the CLIENT, in accordance with the relevant SoW in all material respects.

STRUTO shall use reasonable endeavours to meet any Milestones specified in a SoW but any such dates shall be estimates only and time for performance by STRUTO shall not be of the essence of these Terms.

When on site at the CLIENT’s premises, STRUTO shall use reasonable endeavours to observe all health and safety and security requirements that apply at such CLIENT premises and that have been communicated to it under condition 1(e) provided that it shall not be liable under these Terms if, as a result of such observation, it is in breach of any of its obligations under these Terms.

CLIENT's obligations

The CLIENT shall:

co-operate with STRUTO in all matters relating to the Works;

appoint a manager in respect of the Works to be performed under each SoW as identified in the relevant SoW (CLIENT’S Representative) who shall commit to the required level of engagement as specified in the SoW or as agreed between the parties at the meeting between the parties to kick off work on the Project;

provide, for STRUTO, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the CLIENT's premises, office accommodation, data and other facilities as reasonably required by STRUTO including any such access as is specified in a SoW;

provide to STRUTO in a timely manner all documents, information, items and materials in any form (whether owned by the CLIENT or a third party) required under a SoW or otherwise reasonably required by STRUTO in connection with the Works and ensure that they are accurate and complete;

inform STRUTO in writing of all health and safety and security requirements that apply at any of the CLIENT's premises;

ensure that all the CLIENT's Equipment is in good working order and suitable for the purposes for which it is used in relation to the Works and conforms to all relevant United Kingdom standards;

obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable STRUTO to provide the Works, including in relation to the installation of STRUTO's Equipment, the use of all CLIENT Materials and the use of the CLIENT's Equipment insofar as such licences, consents and legislation relate to the CLIENT's business, premises, staff and equipment, in all cases before the date on which the Works are to start;

comply with any additional responsibilities of the CLIENT as set out in the relevant SoW; and

put in place adequate security and virus checking procedures in relation to any computer facilities to which it provides STRUTO with access and ensures that all such security and virus checking procedures are kept up to date at all times.

If STRUTO's performance of its obligations under these Terms is prevented or delayed by any act or omission of the CLIENT, its agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy it may have, STRUTO shall be allowed an extension of time to perform its obligations equal to the delay caused by the CLIENT.

CLIENT feedback, direction, decisions and signoff

The CLIENT’s Representative will provide feedback, direction, decisions and signoff throughout the duration of a Project at the kick-off call, along with a secondary representative who will be able to provide feedback, direction, decisions and signoff should the Client’s Representative be unavailable.

Calls between the parties will be conducted via an online meeting tool such as RingCentral or Zoom. Feedback and direction will be gathered by regular communication calls between STRUTO and the CLIENT.  Where the CLIENT’s decisions or direction cannot be made on a call, then STRUTO requires such feedback on within one business day to enable STRUTO to keep to the agreed timescale for that phase of the Project. Lack of response by the CLIENT within this timeframe may cause the timescale to be extended which will require the consent of STRUTO through the Change Control Process.

STRUTO shall create signoff requests once a STRUTO team member has reviewed the Work with the CLIENT and the parties agree that the Work conforms with the specifications set out in the SoW. STRUTO shall then send a signoff request to the CLIENT and the CLIENT shall approve the signoff request on a call with STRUTO by the CLIENT shall then confirm by email to STRUTO after the call.

Technical responsibility and assistance

the STRUTO requires that the CLIENT has HubSpot software (or alternative software as set out in the relevant SoW) with the appropriate licensing at signoff of the SoW. If the CLIENT does not have the appropriate licensing or software, then it is the CLIENT’s responsibility to enter into the necessary licence with HubSpot or alternative software provider (as applicable) prior to STRUTO being able to commence its Services. The CLIENT shall also ensure that STRUTO’s team members working on the Project have administrative level access to the HubSpot or alternative software (as applicable) from the outset of the Project.

Support for the HubSpot or alternative software (as applicable) is through HubSpot or applicable software provider, unless the CLIENT enters into a separate support contract with STRUTO in such respect.

STRUTO’s responsibilities to the CLIENT extend as far as the functional aspects of the HubSpot platform or CMS (Software Platform) or other software set out in relevant SoW (as applicable) that are comprised in the Project. Where an issue arises with the third party software platform, STRUTO and the CLIENT will co-engage with the relevant third party vendors’ support representatives to try and resolve the issue. In the event of ongoing issues that are the responsibility of the third party vendor, STRUTO and CLIENT endeavour to agree on a path to resolution. Where such resolution requires work considered by STRUTO to be outside the scope of the relevant SoW, such additional work or timeframe will be subject to the Change Control Process. In the event that no agreement can be reached with the third party vendor, then STRUTO may terminate any contract created between itself and the CLIENT without incurring any liability to the CLIENT and the CLIENT shall pay STRUTO for any work already carried out prior to the date of termination.

Save as set out in condition 6.5, should the CLIENT request troubleshooting support from a STRUTO team member in any respect, this will be considered out of scope of the Project and will be subject to the Change Control Process.

STRUTO shall provide bug fixes on in-scope items without charge for 30 days post-go-live. The CLIENT shall notify STRUTO of any such bugs on in-scope items by raising a support ticket with STRUTO or by e-mail.

The software platforms recommended by STRUTO for the purposes of the website build phase of the Project are supported by the following browsers:

Windows-supported browsers

Microsoft recommends using Microsoft Edge as the default browser and supports Internet Explorer 11 for backward compatibility. Versions of Internet Explorer 10 and below are not supported by the software platforms utilised by STRUTO in respect of the Project because they are not fully supported by Microsoft.

When you have Compatibility View turned on in Internet Explorer 11, STRUTO’s unsupported browser warnings will appear on the screen because Internet Explorer 11 is acting as an older browser. To resolve this error, STRUTO recommends turning off Compatibility View.

Mac-supported browsers

Google Chrome (latest version)

Safari (latest version)

Mozilla Firefox (latest version)

Non-solicitation and employment

The CLIENT shall not at any time from the date of the SoW until the date falling 12 calendar months after the expiry or termination of the contract pursuant to any SoW, whether directly or indirectly, solicit or entice away or attempt to solicit or entice away from STRUTO or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of STRUTO in the provision of such Works.

In the event the CLIENT breaches condition 7.1 above, the CLIENT shall pay to STRUTO, on demand, all reasonable costs, charges or losses sustained or incurred by STRUTO in connection with the breach by the CLIENT of condition 7.1 (including, for the avoidance of doubt, any costs, charges or losses arising out of the transfer by operation of law of the employment of any person who is, or has been, engaged as an employee, consultant or subcontractor of STRUTO in the provision of such Works.

Charges and payment

In consideration of the provision of the Works by STRUTO, the CLIENT shall pay the SoW Charges.

Where the SoW Charges are calculated on a time and materials basis:

STRUTO's daily fee rates for each individual person shall be as set out in the relevant SoW and are calculated on the basis of an eight-hour day, worked during Business Hours;

Outside of Business Hours STRUTO shall be entitled to charge an overtime rate of time and a half on Saturdays and double time on Sundays and public holidays, the rate set out in the relevant SoW in respect of hours additional hours worked.

Where the SoW Charges are calculated on a fixed price basis, the amount of those charges shall be as set out in a SoW.

The SoW Charges exclude the following, which shall be payable by the CLIENT monthly in arrears, following submission of an appropriate invoice:

the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom STRUTO engages in connection with the Works; and

the cost to STRUTO of any materials or services procured by STRUTO from third parties for the provision of the Works as such items and their cost are set out in the SoW and/or approved by the CLIENT in advance from time to time.

STRUTO shall invoice the CLIENT for the SoW Charges at the intervals specified, or on the achievement of any Milestones indicated, in the SoW. If no intervals are so specified, STRUTO shall invoice the CLIENT at the end of each month for Works performed during that month.

The CLIENT shall pay each invoice submitted to it by STRUTO within the time specified on the relevant SoW or if none is specified then within 7 days of the date of the relevant invoice.

Without prejudice to any other right or remedy that it may have, if the CLIENT fails to pay STRUTO any sum due under these Terms on the due date:

the CLIENT 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 condition will accrue each day at 4% 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%; and

STRUTO may suspend part or all of the Works until payment has been made in full.

All sums payable to STRUTO under these Terms:

are exclusive of VAT, and the CLIENT shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and

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).

In the event of a dispute arising in respect of any invoice, the CLIENT must notify STRUTO in writing within 7 days of the date of the invoice or STRUTO shall deem the invoice accepted by the CLIENT.

Intellectual property rights

In relation to the Deliverables:

STRUTO and its licensors shall retain ownership of all IPRs in the Deliverables, excluding the CLIENT Materials;

STRUTO grants the CLIENT, or shall procure the direct grant to the CLIENT of, a fully paid-up, worldwide, non-exclusive, royalty-free to copy and modify the Deliverables (excluding the CLIENT Materials) for the purpose of receiving and using the Works and the Deliverables in its business; and

the CLIENT shall not sub-license, assign or otherwise transfer the rights granted in condition 1(b) without the written consent of STRUTO.

In relation to the CLIENT Materials, the CLIENT:

and its licensors shall retain ownership of all IPRs in the CLIENT Materials; and

grants to STRUTO a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the CLIENT Materials for the term of these Terms for the purpose of providing the Works to the CLIENT.

STRUTO:

warrants to the CLIENT that the receipt and use of the Works and the Deliverables by the CLIENT and its permitted sub-licensees shall not infringe the rights, including any Intellectual Property Rights, of any third party;

shall, subject to condition 6, indemnify the CLIENT against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all other reasonable professional costs and expenses) suffered or incurred or paid by the CLIENT arising out of or in connection with any claim brought against the CLIENT for actual or alleged infringement of a third parties Intellectual Property Rights, arising out of, or in connection with, the receipt and use of the Works and Deliverables.

shall not be in breach of the warranty at condition 3(a) and the CLIENT shall have no claim under the indemnity at condition 9.3(b) to the extent the infringement arises from:

the use of CLIENT Materials in the development of, or the inclusion of the CLIENT Materials in, the Works or any Deliverable;

any modification of the Works or any Deliverable, other than by or on behalf of STRUTO; and

compliance with the CLIENT's specifications or instructions.

The CLIENT:

warrants to STRUTO that the receipt and use in the performance of these Terms by STRUTO, its agents, subcontractors or consultants of the CLIENT Materials shall not infringe the rights, including any Intellectual Property Rights, of any third party; and

shall subject to condition 12.7, indemnify STRUTO against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable]professional costs and expenses) suffered or incurred or paid by STRUTO arising out of or in connection with any claim brought against STRUTO, its agents, subcontractors or consultants for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of these Terms of the CLIENT Materials.

If either party (Indemnifying Party) is required to indemnify the other party (Indemnified Party) under this condition 7, the Indemnified Party shall:

notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at condition 3(b) or condition 9.4(b) (as applicable) (IPRs Claim);

allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party's prior approval of any settlement terms, such approval not to be unreasonably withheld;

provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party's costs so incurred; and

not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.

Data protection

Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This condition 10 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.

The CLIENT consents to, (and shall procure all required consents, from its personnel, representatives and agents, in respect of) all actions taken by STRUTO in connection with the processing of CLIENT Personal Data, provided these are in compliance with the then-current version of STRUTO's privacy policy available at www.struto.co.uk/privacy-policy (Privacy Policy). In the event of any inconsistency or conflict between the terms of the Privacy Policy and these Terms, the Privacy Policy will take precedence.

STRUTO's liability for losses arising from breaches of this condition 10 is as set out in condition 6(b).

Confidentiality

Each party undertakes that it shall not at any time during these Terms, and for a period of two years after termination or expiry of these Terms, disclose to any person any confidential information concerning the business, affairs, CLIENTs, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by condition 2(a).

Each party may disclose the other party's confidential information:

to its employees, officers, representatives, contractors, 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 these Terms. 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 condition 11; and

as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

No party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with these Terms.

Limitation of liability

Background to the limits and exclusions on STRUTO's liability. STRUTO has obtained professional indemnity insurance cover in respect of its own legal liability for individual claims not exceeding £1,000,000.00 per claim. STRUTO has been unable to obtain insurance in respect of certain types of loss at a commercially viable price. The limits and exclusions in this condition reflect the insurance cover STRUTO has been able to arrange and the CLIENT is responsible for making its own arrangements for the insurance of any excess loss.

Scope of this condition. References to liability in this condition 12 (Limitation of liability) include every kind of liability arising under or in connection with these Terms including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

No limitations in respect of deliberate default. Neither party may benefit from the limitations and exclusions set out in this condition in respect of any liability arising from its deliberate default.

No limitation of the CLIENT's payment obligations. Nothing in this condition 12 shall limit the CLIENT's payment obligations under these Terms.

Liabilities which cannot legally be limited. Nothing in these Terms limits any liability which cannot legally be limited, including but not limited to liability for:

death or personal injury caused by negligence;

fraud or fraudulent misrepresentation; and

breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

Cap on STRUTO's liability. Subject to condition 3 (no limitations in respect of deliberate default) and condition 12.5 (liabilities which cannot legally be limited), STRUTO's total liability to the CLIENT:

for damage to property caused by the negligence of its employees and agents in connection with these Terms shall not exceed £5,000,000.00 for any one event or series of connected events;

under condition 9.3(b) (Intellectual Property indemnity) shall not exceed £1,000,000.00 for any one event or series of connected events;

for loss arising from STRUTO's failure to comply with its data processing obligations under condition 10 (Data protection) shall not exceed £1,000,000.00 for any one event or series of connected events; and

for all other loss or damage which does not fall within sub-condition (a), (b) or (c) shall not exceed annually the value of the Works carried out under the relevant SoW.

Cap on the CLIENT's liability. Subject to condition 3 (no limitations in respect of deliberate default), and condition 12.5 (liabilities which cannot legally be limited), the CLIENT's total liability to STRUTO:

for damage to property caused by the negligence of its employees and agents in connection with these Terms shall not exceed £1,000,000.00 for any one event or series of connected events;

under condition 9.4(b) (Intellectual Property indemnity) shall not exceed £1,000,000.00 for any one event or series of connected events;

for loss arising from the CLIENT’s failure to comply with its data processing obligations under condition 10 (Data protection) shall not exceed £1,000,000.00; and

for all other loss or damage which does not fall within sub-condition (a) or (b) shall not exceed annually the value of the Works carried out under the relevant SoW.

Exclusion of statutory implied terms. STRUTO has given commitments as to compliance of the Works with relevant specifications in condition 1 (STRUTO's responsibilities). 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 these Terms.

Change control

Either party may propose changes to the scope or execution of the Works but no proposed changes shall come into effect until a relevant Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:

the Works;

the SoW Charges;

the timetable for the Works; and

any of the other terms of the relevant Statement of Work.

If STRUTO wishes to make a change to the Works it shall provide a draft Change Order to the CLIENT.

If the CLIENT wishes to make a change to the Works:

it shall notify STRUTO and provide as much detail as STRUTO reasonably requires of the proposed changes, including the timing of the proposed change; and

STRUTO shall, as soon as reasonably practicable after receiving the information at condition 3(a), provide a draft Change Order to the CLIENT.

13.4        If the parties agree to a Change Order, they shall sign it and that Change Order shall amend the relevant Statement of Work.

Termination

Without affecting any other right or remedy available to it, either party may terminate the contract created under the relevant SoW with immediate effect by giving written notice to the other party if:

the other party commits a material breach of any term of these Terms 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 suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986;

the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

the other party applies to court for, or obtains, a moratorium under Part A1 of the IA 1986;

a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);

the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;

a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;

a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;

any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 1(c) to condition 14.1(j) (inclusive);

the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of these Terms is in jeopardy.

Without affecting any other right or remedy available to it, STRUTO may terminate the contract created under any SoW with immediate effect by giving written notice to the CLIENT if:

the CLIENT fails to pay any amount due under these Terms on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment; or

there is a change of Control of the CLIENT.

Obligations on termination and survival

Obligations on termination or expiry

On termination or expiry of these Terms:

the CLIENT shall immediately pay to STRUTO all of STRUTO's outstanding unpaid invoices and interest and, in respect of the Works supplied but for which no invoice has been submitted, STRUTO may submit an invoice, which shall be payable immediately on receipt;

the CLIENT shall, within a reasonable time, return all of STRUTO's Equipment. If the CLIENT fails to do so, then STRUTO may enter the CLIENT's premises and take possession of STRUTO's Equipment. Until STRUTO's Equipment has been returned or repossessed, the CLIENT shall be solely responsible for its safe keeping; and

STRUTO shall on request return any of the CLIENT Materials not used up in the provision of the Works.

Survival

Any provision of these Terms or of the relevant SoW that expressly or by implication is intended to come into or continue in force on or after termination or expiry of these Terms shall remain in full force and effect.

Termination or expiry of the contract subject to these Terms and any terms applying under the relevant SoW 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.

Force majeure

Force Majeure Event means any circumstance not within a party's reasonable control including, without limitation:

acts of God, flood, drought, earthquake or other natural disaster;

epidemic or pandemic, including for the avoidance of doubt, a COVID-19 pandemic;

terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;

nuclear, chemical or biological contamination or sonic boom;

any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;

collapse of buildings, fire, explosion or accident; and

interruption or failure of utility service.

Provided it has complied with condition 4, if a party is prevented, hindered or delayed in or from performing any of its obligations under these Terms by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of these Terms or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.

The Affected Party shall:

as soon as reasonably practicable after the start of the Force Majeure Event but no later than 7 days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the relevant contract; and

use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than 12 weeks, the party not affected by the Force Majeure Event may terminate the contract governed by these Terms by giving at least 12 weeks' written notice to the Affected Party.

Assignment and other dealings

The CLIENT 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 these Terms.

STRUTO may at any time assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights under these Terms, provided that STRUTO gives prior written notice of such dealing to the CLIENT.

Variation

No variation of these Terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

Waiver

A waiver of any right or remedy under these Terms or the relevant SoW 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 these Terms or the relevant SoW 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 these Terms or the relevant SoW or by law shall prevent or restrict the further exercise of that or any other right or remedy.

Rights and remedies

The rights and remedies provided under these Terms and under the relevant SoW are in addition to, and not exclusive of, any rights or remedies provided by law.

Severance

If any provision or part-provision of these Terms or the relevant SoW 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 these Terms or the relevant SoW.

If any provision or part-provision of these Terms or the relevant SoW is deemed deleted under condition 1 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.

Entire agreement

This agreement, along with any relevant SoW, 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.

Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms or the relevant SoW. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms or in the relevant SoW.

Conflict

If there is an inconsistency between any of the provisions of these Terms and the provisions of the relevant SoW, the provisions of the relevant SoW shall prevail.

No partnership or agency

Nothing in these Terms or in any SoW is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

Each party confirms it is acting on its own behalf and not for the benefit of any other person.

Third party rights

This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms or any SoW.

The rights of the parties to rescind or vary these Terms or any SoW are not subject to the consent of any other person.

Notices

Any notice or other communication given to a party under or in connection with these Terms shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case).

Any notice or communication shall be deemed to have been received:

if delivered by hand, at the time the notice is left at the proper address; or

if sent by pre-paid first-class post or other next Business Day delivery services, at 9.00 am on the second Business Day after posting.

This condition does not apply to the service of any proceedings or any documents in any legal action.

Multi-tiered dispute resolution procedure

If a dispute arises out of or in connection with the contract formed between the parties pursuant to these Terms and any relevant SoW or the performance, validity or enforceability of it (Dispute) then except as expressly provided in this agreement, the parties shall follow the procedure set out in this condition:

either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the CLIENT’s Representative and STRUTO’s Representative shall attempt in good faith to resolve the Dispute;

if the CLIENT’s Representative and STRUTO’s Representative are for any reason unable to resolve the Dispute within 7 days of service of the Dispute Notice, the Dispute shall be referred to the managing director of the CLIENT and the managing director of STRUTO who shall attempt in good faith to resolve it; and

if the managing director of the CLIENT and the managing director of STRUTO are for any reason unable to resolve the Dispute within 7 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than 7 days after the date of the ADR notice.

No party may commence any court proceedings under condition 29 in relation to the whole or part of the Dispute until 30 days after service of the ADR notice, provided that the right to issue proceedings is not prejudiced by a delay.

If the Dispute is not resolved within 30 days after service of the ADR notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of 30 days, or the mediation terminates before the expiration of the said period of 30 days, the Dispute shall be finally resolved by the courts of England and Wales in accordance with condition 29.

Governing law

This agreement and any SoW and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with either of them or their respective subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

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 created by any SoW and governed by these Terms or its subject matter or formation.