Updates to Terms of business and Privacy Policy ×

Terms of Business

Effective from 25th May 2018

 

1. Application of Terms

 

 

1.1 The terms and conditions set out in this document (the "Terms of Business") apply to and are incorporated into each agreement pursuant to which Affinity agrees to provide Services to the Client, whether such agreement is concluded in writing, verbally, by a course of dealing, or otherwise (a "Contract").

 

1.2 The standard terms of any business forms (including purchase orders) of the Client shall be without legal effect in relation to the Contract and the Services, irrespective of when such standard terms and conditions or other terms are put forward.

 

1.3 All of the provisions of these Terms of Business shall apply to the supply of both Services and Content except where application to one or the other is specified.

 

1.4 For the purposes of these Terms of Business:

     a) "Client" means any person to whom Affinity provides Services pursuant to a Contract;

     b) "Affinity" means the member of the Affinity Group which entered into the Contract with the                Client.  In the event of any doubt, Affinity shall mean Affinity (Shipping) LLP;

     c) "Affinity Group" means Affinity (Shipping) LLP, and any corporate body which is from time to                time a holding company of Affinity (Shipping) LLP, a subsidiary of Affinity (Shipping) LLP or a                subsidiary of a holding company of Affinity (Shipping) LLP, whether direct or indirect, where                "subsidiary" and "holding company" have the meanings given in Section 1159 of the Companies          Act 2006;

     d)"Content" means the research reports, podcasts, video content and data analytics made                       available on the Website from time to time;

     e)"Order" means the Client's order for Services (other than Content) as set out in the Client's                   acceptance of the Supplier's quotation, whether via email or otherwise;

     f)"Party" individually means Affinity or the Client that is party to the Contract (as applicable),                and "Parties" shall be construed accordingly;

     g)"Services" means brokering, advisory, or consulting services in relation to a vessel (whether or              not such vessel is extant as at the date the Contract is concluded) as set out in the Specification          and/or the provision of Content via the Website;

     h)"Specification" means the description or specification of the Services provided by Affinity to the          Client; and

     i)"Website" means the website at https://www.affinityship.com/.

     

2. Relationship between the Parties

 

2.1  The Order constitutes an offer by the Client to purchase Services (other than Content) from Affinity. The Order shall only be deemed to be accepted when Affinity issues written acceptance of the Order at which point and on which date the Contract shall come into existence. Formation of Contracts for the provision of Content shall be governed by Clause 2.6.

 

2.2  Any samples, drawings, descriptive matter or advertising issued by Affinity, and any descriptions or illustrations contained in Affinity's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

 

2.3 These Terms of Business apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

 

2.4  In the event that a Client requests Affinity to use the services of a third party in relation to a Contract (the "Third Party Services"), the Client appoints Affinity as its agent to conclude contracts with such third party for the provision such Third Party Services in the name of and on behalf of the Client, without prior reference to the Client. Affinity expressly disclaims (to the maximum extent permitted by law) all warranties and representations with respect to the Third Party Services (whether express, implied, statutory or otherwise), including: any implied warranty of merchantability, fitness for a particular purpose, accuracy, or reliability of results from use of the Third Party Services; that the Third Party Services will meet specific requirements; or that the Third Party Services will be uninterrupted, secure, or free of errors (including software errors).

 

2.5   The Client acknowledges and agrees that Third Party Services are provided on an "as is" basis without any warranty of any kind and that the entire risk as to the quality and performance of the Third Party Services shall be borne by the Client unless otherwise agreed with the Client.

 

2.6   Completion and submission of the 'Request Account' form on the Website constitutes an offer by a prospective Client to subscribe for the Content. Such offer shall only be deemed to be accepted by Affinity, upon the earliest of:

    1. Communication by Affinity to the Client that the offer has been accepted and that access to the Content will be made available;
    2. Dispatch of an invoice by Affinity to the Client in respect of its subscription for the Content; or
    3. Delivery by Affinity to the Client or the Client's nominee of access to all or part of the Content,

at which point a Contract for the provision of the Content shall come into existence. Content may be made available to the Client by Affinity free of charge for such period as may be specified by Affinity from time to time. Affinity shall notify the Client if Charges become payable by the Client in respect of the provision of Content, including details of the amount of such Charges and the date from which such Charges will be due. Charges shall be payable in accordance with Clause 6. 

 

2.7  In the event that the Client has requested that access to the Content is to be made available to a nominee, Affinity may agree to such a request in its absolute discretion and, if accepted, access to the Content by the Client's nominee will at all times be subject to these Terms of Business and the Client will at all times be responsible for the Client's nominee's compliance with these Terms of Business. The Client shall indemnify Affinity against all liabilities, costs, expenses, damages and losses suffered or incurred by Affinity arising out of or in connection with the provision of Content to the Client's nominee.


3. Warranties, Representations, and Undertakings

 

3.1 Affinity undertakes that it shall perform the Services with reasonable care, diligence, skill and judgement.

 

3.2 The Client warrants that at the time of contracting with Affinity, and again at all other relevant times, that it has the full power and authority to engage Affinity to provide the Services; and to instruct Affinity to enter into, arrange or execute any transaction arising out of or in connection with the Services.

 

3.3 The Client warrants that it has adequate resources to enter into and perform any transaction arising out of or in connection with the Services.

 

3.4 The Client undertakes that it shall deal with Affinity in good faith at all times.

 

3.5 Each Party warrants that it complies, and represents and undertakes that it shall comply at all times with all applicable laws with regards to money laundering, bribery and corruption.


4. Provision of Content

 

4.1, The Content is provided for general information only. It is not intended to amount to advice on which the Client should rely. The Client acknowledges that it should obtain professional or specialist advice before taking, or refraining from, any action on the basis of the Content. Affinity is not liable for any consequences of the Client's reliance on the Content for any particular purpose.

 

4.2  The information comprised in the Services (including without limitation, the Content) is given in good faith based on the current market situation at the time Content is prepared by Affinity and as such is specific to that point in time only. While all reasonable care has been taken in the preparation and collation of such information, Affinity does not accept any liability whatsoever for any errors of fact or opinion based on such facts. Insofar as permitted in law, Affinity makes no representations, warranties, conditions or guarantees, whether express or implied, that such information is accurate, complete, up to date, free from error or omission, fit for purpose or non-infringing.

 

4.3  Some of the Content is provided by third parties (Third Party Content) and Affinity is not responsible for such Third Party Content.

 

4.4  It is understood and agreed by the Client that the complex nature of the shipping business may result in inherent limitations, inaccuracies and shortfalls in the material and other information collected, processed and provided by Affinity which is comprised in the Services (including without limitation, the Content). For example, and without limitation:

          a.  Information included in the Services may be based on estimates or subjective judgements (such as ship prices where no sales information for comparable ships is available);

          b.  The information in the databases of other maritime data collection agencies may vary from the information in the Affinity database;

          c.  Some industry information relating to the shipping industry can be difficult to find or establish. Some data may not be available and may need to be estimated or assessed and where such data may be limited or unavailable subjective assessment may have to be used;

          d.  No market analysis can guarantee accuracy. The usual fundamentals may not always govern the markets, for example psychology, market cycles and external events (such as acts of god or developments in future technologies) could cause markets to depart from their natural/usual course. Such external events have not been considered as part of this analysis. Historical market behaviour does not predict future market behaviour and shipping is an inherently high risk business. The Client should therefore consider a variety of information and potential outcomes when making decisions based on the information contained in the Services.

 

4.5  The Services are made available to the Client solely for informational purposes and the information comprised therein must not be passed or divulged to any third parties whatsoever without the written permission of Affinity. Affinity accepts no liability to any third parties whatsoever. If permission to disclose any piece of information comprised in the Services is granted by Affinity, the Client must disclose the entirety of that piece of information including all disclaimers (for example, a report), and not selected excerpts which may be taken out of context.

 

4.6  Access to the Content is conditional at all times on the Client's compliance with the Website Terms of Use [terms of use], which are hereby incorporated into each Contract for the provision of the Content.


5. Client Responsibilities

 

5.1 The Client shall procure that its employees, servants, and agents will promptly provide all information and assistance reasonably required by Affinity to arrange and/or perform the Services, and undertakes to ensure that all information provided to Affinity by or on behalf of the Client will be accurate and complete.

 

5.2 In the event that there is any change to the information provided to Affinity, the Client shall promptly notify Affinity of such change.  The Client agrees that Affinity is entitled to rely upon any information as it is provided by the Client for the purposes of and in connection with the Service until such time as Affinity is notified of any such change.

 

5.3 The Client shall indemnify and hold Affinity harmless against any and all loss, damage, or expense suffered or incurred by Affinity or a member of the Affinity Group arising as a consequence of a breach of Clause 5.1 or 5.2 above.

 


6. Charges and Payment

 

6.1 In these Terms of Business, "Charges" means all charges (including all commissions) payable for the Services under the Contract (including those which may be payable by custom of the trade or by reference to a course of dealings between the Parties).

 

6.2 Unless otherwise agreed in the Contract, Affinity shall invoice the Client at a frequency which Affinity considers appropriate to the nature of the Services to be performed.

 

6.3 Invoices shall become due and payable on the date specified on the invoice, and the Client shall pay all invoices promptly in full, without any suspension, retention, set-off (statutory or otherwise), deduction, counterclaim or discount and notwithstanding the existence of any claim or dispute in respect of the Services.

 

6.4 Charges are exclusive of value added tax, sales tax, and any other applicable taxes.  The Client will pay to Affinity any taxes properly chargeable on Services supplied pursuant to the Contract.

 

6.5 If any Charges due for payment under the Contract are not paid within thirty (30) days after the invoice date, the Client shall pay interest on such sum from the due date until the date of actual payment (whether before or after judgment) at the rate of four percent (4%) per annum above the base rate of Royal Bank of Scotland plc from time to time, such interest to accrue on a day to day basis and to be compounded monthly.

 

6.6 Without prejudice to Clause 9.2, Affinity shall be entitled to suspend its performance of the Services in the event that any Charges are at least thirty (30) days overdue.

 

6.7 Unless otherwise expressly agreed in writing by a partner of Affinity, the Client shall be responsible for the payment of all Charges.  In circumstances where the Client’s responsibility for the payment of the Charges is to be discharged by a third party, the Client shall take all necessary steps to ensure the prompt payment of such Charges and shall pay the Charges itself in the event of default by the third party.

 

6.8 If Affinity receives monies payable to the Client, Affinity shall be entitled to retain from such monies a sum equivalent to any current or future Charges which are or will become payable by the Client to Affinity whether or not those Charges have become due and payable.

 

7. Intellectual Property

 

7.1 For the purposes of the Contract, "Intellectual Property Rights" means patents, petty patents, utility models, trade marks, design rights, applications for any of the foregoing, copyright, database rights, semi-conductor topography rights, trade or business names, domain names, website addresses whether registrable or otherwise, (including applications for and the right to apply for registration of any such rights), and any similar rights in any country whether currently existing or created in the future, in each case for their full term, together with any renewals or extensions.

 

7.2 Affinity hereby grants to the Client a non-exclusive right during the term of the Contract to use the materials provided to it by Affinity ("Affinity Materials"), other than as part of the Third Party Services, for the purpose of receipt of the Services by the Client.  In relation to future copyright, such licence shall take effect as a present licence of future rights.

 

7.3 Affinity and its licensors shall retain all right, title and interest in and to all Intellectual Property Rights or other proprietary rights in the Affinity Materials.

 

7.4 The Client hereby grants to Affinity a non-exclusive right during the term of the Contract to use the materials provided to it by the Client ("Client Materials") for the purpose of providing the Services.  In relation to future copyright, such licence shall take effect as a present licence of future rights.

 

7.5 The Client and its licensors shall retain all right, title and interest in and to all Intellectual Property Rights or other proprietary rights in the Client Materials.

 

7.6 In the event of a claim brought by a third party against a Party (the "Recipient") alleging that any material provided to the Recipient by the other Party (the "Provider") infringes that third party's Intellectual Property Rights, the Provider shall defend the Recipient, and indemnify it against any award of the court to the third party or the settlement agreed to by the Provider, provided that the Recipient:

     a) notifies the Provider promptly in writing, not later than thirty (30) days after the Recipient                  receive notice of the claim;

     b) gives the Provider sole control of the defence and any settlement negotiation; and

     c) gives the Provider the information, authority, and assistance the Provider needs to defend                  against or settle the claim.

 

8. Liability

 

8.1 Affinity and the Client agree that the limits and exclusions of liability in this Clause 7 are fair and reasonable having regard to the nature of the Services, the fees charged for such Services, and all other circumstances known to the Client and Affinity at the time of the making of the Contract.

 

8.2 The Client undertakes that no claim or allegation in respect of the Services, whether arising in contract, tort (including negligence) or otherwise, shall be made against Affinity by any person other than the Client and, if any such claim or allegation should nevertheless be made, undertakes to defend, indemnify and hold harmless Affinity against all consequences thereof.

 

8.3 Affinity shall not be liable for any:

     a) loss of profit, revenue, or anticipated saving;

     b)loss of goodwill, reputation or opportunity;

     c) loss of or corruption of data or interruption of business; or

     d) account of profits,

arising out of or in connection with the Contract or any breach or non-performance of it no matter how fundamental (including by reason of its negligence).

 

8.4 Neither Party shall be liable to the other for any indirect or consequential loss arising out of or in connection with the Contract or any breach or non-performance of it no matter how fundamental (including by reason of that party’s negligence).

 

8.5 Affinity's total aggregate liability arising under or in connection with the Contract or any breach or non-performance of it, no matter how fundamental, in contract, tort (including negligence) or otherwise, shall be limited to the Charges paid to Affinity by the Client in the twelve (12) months immediately prior to the cause of action arising.

 

8.6 Affinity's total aggregate liability arising under or in connection with a Contract for the provision of Content or any breach or non-performance of it, no matter how fundamental, in contract, tort (including negligence) or otherwise, shall be limited to £30,000.

 

8.7 In any event, Affinity shall be discharged from all liability whatsoever or howsoever arising out of or in connection with the provision of Services unless proceedings are commenced and served on Affinity before the earlier of:

     a) three (3) years from the cause of action arising; and

     b) one (1) year from the termination or expiry of the Contract.

 

8.8 Notwithstanding any contrary provision in this Agreement, neither Party limits or excludes its liability in respect of:

     a) any death or personal injury caused by its negligence;

     b) any fraud or fraudulent misrepresentation;

     c) its wilful default or wilful abandonment of this Agreement or any part of it; or

     d) any statutory or other liability which cannot be excluded under applicable law.

 

9. Confidentiality

 

9.1 For the purposes of the Contract, "Confidential Information" means:

     a) all information disclosed to the relevant Party by or on behalf of the other Party in connection          with the Contract which relates to the provisions of the Contract or the negotiations relating to          the Contract;

     b) know-how, secret processes and inventions disclosed to the relevant Party by or on behalf of            the other Party in connection with the Contract;

     c) all other information disclosed to the relevant Party by or on behalf of the other Party (whether          before or after the date of the Contract) which is marked as or has been otherwise indicated to          be confidential or which derives value to a Party from being confidential or which would be                regarded as confidential by a reasonable business person;

 

9.2 Subject to Clause 9.3, each party shall treat all Confidential Information as strictly confidential and shall not disclose Confidential Information to any person.

 

9.3 A party may disclose Confidential Information if and to the extent: 

     a) required by law or order of the courts, or by any securities exchange or regulatory or                          governmental body to which such party is subject, wherever situated (whether or not the                    requirement for information has the force of law); or 

     b) disclosed on a necessary basis to the personnel, professional advisers, auditors and bankers              of such party; or

     c) the Confidential Information has come into the public domain other than by a breach of any              obligation of confidentiality; or

     d) with the prior written approval of the other party.

 

9.4 Affinity may disclose Confidential Information to its subcontractors and third party suppliers as it considers necessary for the performance of its obligations under the Contract and the performance of the Services.

 

9.5 The Client shall not publish any document containing any express or implied reference to Affinity or make use of the Affinity name or any Affinity logo, without the prior written consent of Affinity and subject to such conditions as may be imposed by Affinity.

 

9.6 The Client confirms that it is aware of, and consents to the processing by Affinity of any personal data it provides to Affinity within the meaning of, the Data Protection Act 1998.  The Client agrees that Affinity may record telephone conversations to resolve complaints and disputes, and improve its service standards.  Telephone conversations may also be monitored for staff training purposes.

 

9.7 The restrictions contained in this Clause 8 shall continue to apply after the termination or expiry of this Agreement (however arising) without limit in time.


10. Data Protection


10.1  The terms controller, personal data, processor, processing, data subject and Member State shall have the meanings ascribed to them under the Data Protection Laws and the term "process" shall be construed accordingly. The following definitions shall apply in this clause 10:

    1. Data Protection Laws means: (a) the Regulation and the European Privacy and Electronic Communications Directive (Directive 2002/58/EC), including, in each case, any laws applicable to the processing of personal data that relates to or promulgate the same into national law; and (b) any other applicable data privacy or data protection laws or regulations and associated binding judgments of any competent tribunal, regulatory body, or court of law; each as amended, supplemented, substituted or replaced from time to time;
    2. Personal Data means any personal data which is processed by Affinity on behalf of the Client in connection with the provision of the Services;
    3. Personal Data Breach means any event that results, or may result in, any: (a) unauthorised or unlawful processing of, disclosure of, use of, access to or theft of the Personal Data; and/or (b) any accidental or unlawful damage to, destruction of, loss of, alteration to or corruption of the Personal Data, and in either case which is likely to result in a risk to the rights and freedoms of any identified or identifiable individuals to whom the Personal Data relates;
    4. Protective Measures means all appropriate technical and organisational measures to ensure an appropriate level of security and to prevent a Personal Data Breach, which shall be compliant with all appropriate Data Protection Laws; and
    5. Regulation means Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data as and when it becomes applicable and any law which implements, supplements, relates to or replaces it.

 

10.2  Both Parties will comply with all applicable requirements of the Data Protection Laws. This clause 10 is in addition to, and does not relieve, remove or replace, a Party's obligations under the Data Protection Laws.

 

10.3 The Parties acknowledge that for the purposes of this Agreement and Affinity's processing of the Personal Data in connection with the provision of the Services, the Client is the data controller and Affinity is the data processor. The subject matter, nature and purpose of processing by Affinity, the duration of the processing and the types of personal data (within the meaning of the Data Protection Laws) and categories of data subject are set out below:

 

Subject matter of processing

The provision of the Services to the Client.

Duration of processing

The term of the Contract.

Nature and purpose of processing

Effective delivery of the Services.

Types of personal data

Name, title, email address, address, details of organisation, telephone number.

Categories of data subjects

Client employees, business contacts.

 

10.4  Without prejudice to the generality of clause 10.2, Affinity shall, in relation to any Personal Data processed in connection with the performance by Affinity of its obligations under this Agreement:

    1. process that Personal Data only for the purposes of performing its obligations under this Agreement and on the documented instructions of the Client (and for the avoidance of doubt such documented instructions shall include Affinity's obligations as provided by this Agreement) unless Affinity is required by any applicable law to process the Personal Data, in which case Affinity shall promptly notify the Client of this before performing the processing required by such applicable law, unless such applicable law prohibits Affinity from so notifying the Client;
    2. notify Client if, in Affinity's opinion, Affinity's compliance with the Client's instructions in respect of the processing of Personal Data would breach Data Protection Laws, in which case Affinity shall be entitled without penalty to suspend execution of the instructions concerned, until the Client confirms in writing that such instructions are to be followed. Affinity shall not have any liability of any nature whatsoever which arises as a result of compliance with Client instructions. Any notification by Affinity under this clause shall not be regarded as legal advice and Affinity shall not be required to perform a legal assessment of Client's instructions;
    3. ensure that it has in place and maintains Protective Measures regarding the security of the Personal Data, including without limitation protection against unauthorised disclosure of or access to, and protection against accidental or unlawful destruction of, loss of or alteration to, Personal Data transmitted, stored or otherwise processed;
    4. ensure that all Affinity staff who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
    5. assist the Client, at the Client's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
    6. notify the Client without undue delay on becoming aware of a Personal Data Breach;
    7. at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of this Agreement unless required by applicable law to store the Personal Data; and
    8. maintain complete and accurate records and information to demonstrate its compliance with this clause 10 and allow for reasonable audits by the Client or the Client's designated auditor to assess Affinity's compliance with this clause 10 and the Data Protection Laws, subject to the Client giving Affinity 5 business days' notice of such audit.

 

10.5  The Client hereby authorises Affinity to engage third parties to carry out processing of the Personal Data ("Sub-Processors"), including, without limitation, providers of Third Party Services, provided that:

    1. Affinity shall provide the name of all Sub-Processors to the Client on request;
    2. Affinity shall enter into a written agreement with each Sub-Processor that imposes obligations on that Sub-Processor which are equivalent to, and no less onerous than, those applicable to Affinity as set out in this clause 10; and
    3. Affinity shall not be relieved of any of its obligations under this clause 10 by engaging Sub-Processors.

 

10.6  Prior to implementing any changes concerning the addition or replacement of Sub-Processors engaged by Affinity pursuant to the Client's general authorisation in clause 10.5, Affinity will notify the Client in writing of such proposed engagement. The Client may, within fourteen working days of receipt of such notice, give notice in writing, objecting to Affinity disclosing Personal Data to such Sub-Processor, and the Client's objection will be deemed to be the Client's waiver of Affinity's obligation to perform Services that Affinity would ordinarily perform using that Sub-Processor.

 

10.7  The Client will:

    1. comply with its obligations under applicable Data Protection Laws in relation to its collection, processing and provision of Personal Data to Affinity in connection with this Agreement, including that its processing of Personal Data using the Services is lawful and is undertaken in accordance with the principles relating to the processing of personal data set out in Data Protection Laws;
    2. ensure there is no prohibition or restriction in place which would prevent or restrict the Client from disclosing or transferring the Personal Data to Affinity or that would prevent or restrict Affinity disclosing or transferring the Personal Data to the Sub-Processors;
    3. not process any Personal Data using the Services, or permit Affinity to process any Personal Data, in breach or contravention of any order issued to, or limitation of processing imposed on, the Client by any supervisory authority; and
    4. provide Affinity with such co-operation and information as Affinity may reasonably request from time to time to permit Affinity and/or any Sub-Processor comply with its obligations under Data Protection Laws.

 

10.8  Affinity shall be entitled, on giving notice to the Client, to make any variations to this clause 10 which Affinity reasonably considers to be necessary as a result of any change in, or decision of a competent authority under, Data Protection Laws.

 

10.9  Affinity may only process, or permit the processing, of Personal Data outside the EEA under the following conditions:

    1. Affinity is processing Personal Data in a territory which is subject to a current finding by the European Commission under the Data Protection Laws that the territory provides adequate protection for the privacy rights of individuals; or
    2. Affinity participates in a valid cross-border transfer mechanism under the Data Protection Laws, so that Affinity (and, where appropriate, the Client) can ensure that appropriate safeguards are in place to ensure an adequate level of protection with respect to the privacy rights of individuals as required by Article 46 of the Regulation.

 

10.10  The Client agrees that Affinity may record telephone conversations to resolve complaints and disputes, and improve its service standards.  Telephone conversations may also be monitored for staff training purposes.

 

11. Termination

 

11.1  The term of the Contract shall be as set out in the Specification, other than in respect of a Contract for the provision of Content, which shall continue until terminated in accordance with this Clause 11.

 

11.2  Either party may terminate a Contract for the provision of Content with immediate effect at any time by giving written notice to the other party.

 

11.3  The Client shall be entitled to terminate the Contract with immediate effect by giving written notice to Affinity if Affinity commits a material breach of the Contract (or in case of a breach capable of being remedied if Affinity fails, within thirty (30) days of a request in writing from the Client to do so, to remedy the breach).

 

11.4  Affinity shall be entitled to terminate the Contract with immediate effect by giving written notice to the Client if:

    1. the Client commits a material breach of the Contract (or in the case of a breach capable of being remedied if the Client fails, within thirty (30) days of a request in writing from Affinity to do so, to remedy the breach);
    2. the Client has failed to pay an invoice promptly, and further fails to pay such invoice for thirty (30) days after a request in writing from Affinity requiring such payment;
    3. the Client undergoes a change of Control (where "Control" is as defined by section1124 of the Corporation Tax Act 2010); or
    4. the Client summons a meeting of its creditors, makes a proposal for a voluntary arrangement, becomes subject to a voluntary arrangement, is unable to pay its debts within section 123 Insolvency Act 1986, has a receiver, manager or administrative receiver appointed over any of its assets, undertaking or income, has passed a resolution for its winding-up, is subject to a petition presented to any Court for its winding-up, has a provisional liquidator appointed, has a proposal made for a scheme of arrangement under section 895 of the Companies Act 2006, has an administrator appointed in respect of it or is the subject of an application for administration filed at any court or a notice of appointment of an administrator filed at any court or a notice of intention to appoint an administrator given by any person or is the subject of a notice to strike off the register at Companies House or carries out or undertakes or is subject to or undergoes any analogous act, process or proceedings under any applicable law.

 

11.5  If the Contract is terminated other than under Clause 11.3, the Client shall pay to Affinity all Charges earned (whether or not invoiced at the date of such termination), and recoverable costs incurred, in respect of the Services performed up to the date of the termination together with any reasonable further costs and/or expenses incurred by Affinity as a result of the termination.  Any commission earned in respect of any Services provided prior to termination shall continue to be payable despite any termination of the Contract.

 

11.6  Clauses 1, 5.3, 6, 7, 8, 9, 11.5, 11.6, 12, 13, 15, 19, 20, 21, and 22 of these Terms of Business together with all other provisions of the Contract which by necessity must have effect following any expiry or termination of the Contract, shall survive such expiry or termination to the extent permissible by law.

 

 

12. Severability

 

12.1  If any provision of the Contract is declared by any competent court or body to be illegal, invalid or unenforceable under the law of any jurisdiction, or if any enactment is passed that renders any provision of the Contract illegal, invalid or unenforceable under the law of any jurisdiction, this shall not affect or impair the legality, validity or enforceability of the remaining provisions of the Contract, nor the legality, validity or enforceability of such provision under the law of any other jurisdiction.

 

12.2  If the circumstances referred to in Clause 12.1 should arise at any time, but the relevant provision would cease to be illegal, invalid or unenforceable if some part of it were modified, the provision shall apply with whatever modification is necessary to make the provision legal, valid and enforceable and to give effect, to the greatest extent possible, to the commercial intention of the Parties.

 

12.3  If the circumstances referred to in Clause 12.1 should arise at any time, but where Clause 12.2 does not apply, the Parties agree to negotiate in good faith to substitute for the relevant provision a provision which is legal, valid and enforceable in that jurisdiction and which achieves, to the greatest extent possible, the same effect as would have been achieved by the invalid or unenforceable provision.

 

 

13. Waiver

 

Affinity's failure to exercise or delay in exercising a right or remedy provided to it under the Contract shall not constitute a waiver of that right or remedy, and no waiver by Affinity of any breach of the Contract shall constitute a waiver of any subsequent breach of the same or any other provision.  No Waiver given by Affinity shall be valid unless it is given in writing.  Affinity's rights and remedies under the Contract shall be without prejudice to any other right or remedy under the Contract or at law.

 

14. Force Majeure

 

Neither Party shall be liable to the other for any failure to perform or delay in performance of its obligations hereunder (other than an obligation to pay) if and in so far as and for so long as such performance is delayed or prevented by the other's acts or omissions, or by circumstances beyond its reasonable control.

 

15. Claims

 

15.1 If the Client becomes aware of any claims or circumstance which might involve litigation or arbitration concerning the subject matter of the Contract, the Client shall immediately inform Affinity.

 

15.2 The Client undertakes that it will not without the written consent of Affinity use as evidence in any litigation or arbitration proceedings the results of Affinity’s work relating thereto.

 

16. Third Party Rights

 

A person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of it.

 

17. Notices

 

Any notice to be given hereunder or otherwise in relation to the Services shall be in writing and shall be deemed to have been duly given if sent or delivered to the Party concerned at such address as the Party may from time to time notify in writing or to the correct facsimile number or electronic mail address (as notified by the receiving Party) and shall be deemed to have been served, if sent by first class post, two (2) business days after posting and in the case of a facsimile transmission on the following day or in case of electronic mail on the same date. The electronic email address for notices to Affinity shall be [email protected] (or such other electronic email address as Affinity notifies to the Client from time to time). The electronic email address for notices to the Client shall be the electronic email address from which the Client communicates with Affinity in relation to the Services or provides to Affinity when subscribing for the Content.

 

18. Subcontracting and Assignment

 

18.1  Affinity may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

 

18.2  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 the Contract.

 

 

19. Dispute Resolution

 

19.1 Any dispute arising out of or in connection with the Contract or the Services shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof for the time being in force.  The arbitration shall be conducted in accordance with the London Maritime Arbitrators' (LMAA) Terms current at the time when the arbitration is commenced.

 

19.2 Subject to Clause 17.3, the reference referred to in Clause 17.1 shall be to three arbitrators, one to be appointed by each Party and the third by the two so appointed.

 

19.3 A Party wishing to refer a dispute to arbitration shall appoint its arbitrator and send notice of such appointment to the other Party requiring the other Party to appoint its arbitrator within fourteen (14) days of that notice and stating that it will appoint its arbitrator as sole arbitrator unless the other Party appoints its own arbitrator and gives notice that it has done so within the fourteen (14) days specified.  If the other Party does not appoint its own arbitrator and give notice that it has done so within the fourteen (14) days specified, the Party referring the dispute to arbitration may, without the requirement of any further prior notice to the other Party, appoint its arbitrator as sole arbitrator and shall advise the other Party accordingly.  The award of a sole arbitrator shall be as binding as if he had been appointed by agreement.

 

19.4 In cases where neither the claim nor any counterclaim exceeds the sum of one hundred thousand pounds (£100,000) or such other sum as the parties may agree, the arbitration shall be conducted in accordance with the LMAA Small Claims Procedure current at the time when the arbitration proceedings are commenced.

 

19.5 Nothing in these Terms of Business shall prevent either Party from seeking injunctive or interlocutory relief for any breach committed by the other Party.

 

20. Entire Agreement

 

20.1 These Terms of Business together with such terms as are expressly agreed between the Parties in concluding the Contract, comprise the entire agreement between the Parties with respect to the Services.  In the event of a conflict, the following order of precedence shall apply:

     a) any specific terms of the Contract agreed prior to or at its conclusion between Affinity and the            Client; and

     b) these Terms of Business,

save that in the event of any dispute as to the specific terms that were agreed as are referred to in Clause 18.1(a) where those terms are not in writing, the order of precedence shall be reversed in relation to such term.

 

20.2 No purported amendment or variation of these Terms of Business or the other terms of the Contract shall be effective unless it is in writing and duly executed by or on behalf of each of the Parties.

 

20.3 Catalogues, circulars, or literature shown or provided by Affinity are for the Client's general guidance only and the particulars contained therein shall not constitute representations or otherwise form part of the Contract.

 

20.4 Affinity and the Client agree that these Terms of Business apply to the exclusion of all other representations, statements, conditions, terms, warranties, whether express, implied, statutory or otherwise except as are set out in these Terms of Business or are implied by law or statute which cannot by law be excluded.  However, nothing in this Clause 18.4 shall exclude or limit any liability or any right which either Party may have in respect of fraud, fraudulent misrepresentation, or wilful concealment.

 

20.5 Notwithstanding Clause 18.4, unless otherwise expressly agreed in writing, Affinity shall be entitled to the benefit of such terms implied by statute as might ordinarily be held to apply to the Contract for Affinity's protection.

 

21. Governing Law and Jurisdiction

 

21.1 The Contract and any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims) are governed by and shall be construed in accordance with English law.

 

21.2 The parties submit to the exclusive jurisdiction of the English courts for all purposes relating to and in connection with this Agreement and any such dispute or claim referred to in Clause 21.1.

 

22. Interpretation

 

22.1 The headings in these Terms of Business are for convenience only and shall not affect their interpretation.

 

22.2 Any reference in a Contract to any provisions of a statute shall be construed as referring to the provision as amended, re-enacted or extended from time to time (with the exception of Section 1159 of the Companies Act 2006).

 

22.3 In a Contract, unless the context requires otherwise:

     a) words in the singular shall be deemed to include the plural and vice versa;

     b) words importing any particular gender shall include all other genders;

     c) references to persons shall include bodies of persons whether corporate or otherwise; and

     d)words importing the whole shall be treated as including a reference to any part of the whole.