1. Definitions and Interpretation
1.1. In these terms and conditions, the following definitions apply unless otherwise stated:
‘Business Day’ means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
'Contract' means the contract between the Company and the Client for the supply of Services governed by these Terms and the Order.
‘Client’ means the individual, business entity or other person identified in the Order as purchasing or receiving the Services from the Company.
'Force Majeure Event' means an event beyond the reasonable control of either party, including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
‘Group Company’ means a company which is a subsidiary or holding company of the Company, as defined in section 1159 of the Companies Act 2006.
‘Company’ means Sharp Applications Ltd. a company incorporated in Scotland under company number SC362858 whose registered office is at 91 West Savile Terrace, Edinburgh, Scotland, EH9 3DP, trading as Sharp Apps.
‘Intellectual Property Rights’ means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
‘Company Background IP’ means all software, source code, object code, scripts, frameworks, libraries, templates, tools, methodologies, know-how, processes, routines, database structures, system architecture, documentation, working files and other materials owned, developed, licensed, used or supplied by the Company before, outside, or independently of the Services.
‘Client Materials’ means all text, images, data, trade marks, logos, documents, instructions, specifications, business rules, clinical content, medical forms, templates and other materials supplied by or on behalf of the Client.
‘Deliverables’ means the specific outputs, configurations, reports, pages, documents or other materials produced by the Company for the Client under an Order, excluding Company Background IP, Third Party Services and Third Party Materials.
‘Third Party Services’ means any hosting, domain registration, SSL certificate, software licence, plug-in, API, payment processor, advertising platform, email service, content delivery network, analytics service or other product or service supplied by a third party.
‘Third Party Materials’ means any software, code, plug-ins, libraries, templates, content, images, data, documentation, systems, tools or other materials owned or licensed by a third party and used in connection with the Services.
‘Order’ means the order placed by the Client through counter-signing the Company’s Quotation form.
‘Order Form’ means a Quotation form counter-signed by the Client which together with these terms and conditions shall form a binding contract.
‘Quotation’ means the written quotation prepared by the Company which contains its proposals for providing Services to the Client.
‘Services’ means the services the Company will provide to the Client as specified in the Order.
‘Specification’ means the description or specification of the Services in the Order.
‘Terms’ means these terms and conditions as updated from time to time by the Company.
‘VAT’ means value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax.
‘White Label Work’ means Services provided by the Company to a Client who rebrands these services as their own for the benefit of their client.
‘Confidential Information’ means all information which is designated as confidential, which is obviously confidential by its nature, or which a reasonable person would understand to be confidential in the circumstances, including technical, commercial, financial, operational, clinical, software, business, system, security, pricing, client, patient, workflow and know-how information.
1.2. Where these Terms use words in their singular form, they shall also be read to include the plural form of the word and vice versa. Where these Terms use words which denote a particular gender, they shall also be read to include all genders and vice versa.
1.3. The headings in this document are inserted for convenience only and shall not affect the construction or interpretation of these Terms.
1.4. A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
2. Terms and Conditions
2.1. These Terms shall apply to all agreements concluded between the Company and the Client 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. The Company may update these Terms from time to time. Updated Terms shall apply to new Orders and to renewal periods for recurring Services after publication on the Company’s website or written notice to the Client. Existing Orders shall continue on the Terms in force when accepted unless otherwise agreed in writing.
2.2. Except as provided in clause 2.1, these Terms and the Order may only be varied by express written agreement between the Company and the Client.
3. The Contract
3.1. The Order constitutes an offer by the Client to purchase the Services in accordance with these Terms. The Client shall ensure that the terms of the Order and any relevant Specification are complete and accurate.
3.2. The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, or when the Company has started to provide the Services having received the Order, whichever happens first, at which point the Contract shall come into existence.
3.3. Each accepted Order shall form a separate Contract between the Company and the Client, incorporating these Terms and the relevant Order.
3.4. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company, which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by the Company and any descriptions or illustrations contained in the Company'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 any other contract between the Company and the Client for the supply of Services.
3.5. A Quotation for the supply of Services given by the Company shall not constitute an offer. A Quotation shall only be valid for a period of 14 Business Days from its date of issue.
3.6. For any White Label Work the Client understands and agrees that the Company has no contractual relationship and therefore no liability in respect of the ultimate client for whom the Client agrees to perform the White Label Work.
4. Company Obligations and Warranties
4.1. The Company warrants that it will provide the Services as stipulated in the Order using reasonable care and skill to conform in all material respects with the Specification.
4.2. The Company shall use all reasonable endeavours to meet any performance dates specified in the Order but any such dates shall be estimates only and time shall not be of the essence for the provision of the Services. The Company shall not be liable for any delay in delivery of the Services caused by a Force Majeure event or the Client’s failure to provide the Company with adequate delivery instructions or any other instructions relevant to the supply of the Services.
4.3. The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law.
4.4. The Company shall be entitled to use a Group Company or other subcontractors for the provision of the Services provided always that the Company shall remain liable to the Client for the performance of the Services as if it had carried them out itself.
5. Client’s Obligations and Indemnities
5.1. The Client shall provide assistance and technical information to the Company, as reasonably required by the Company in sufficient time to facilitate the execution of an Order in accordance with any estimated delivery dates or milestones. The Client shall have sole responsibility for ensuring the accuracy of all information provided to the Company and warrants and undertakes to the Company that the Client’s employees assisting in the execution of an Order have the necessary skills and authority.
5.2. The Client shall review, comment on, approve or reject materials, recommendations, Deliverables, access requests, information requests and proposed changes within any agreed deadline or, where no deadline is agreed, within a reasonable period. The Client shall provide clear, complete and consolidated feedback where reasonably possible.
5.3. The Client shall inform the Company promptly of any changes to domain names, websites, hosting, email systems, advertising accounts, analytics accounts, technical setup, third-party integrations, business requirements or other material information which may affect the Services.
5.4. If the Client fails to undertake any act, provide any materials, give access, provide instructions, approve materials or otherwise assist as required under this clause 5 within any agreed deadline, or within 15 Business Days of a request by the Company where no deadline is agreed, the Company may suspend the Services, revise any timetable, invoice for Services already supplied, and charge for any wasted time, reserved time, additional work or delay caused by the Client’s failure.
5.5. The Client shall indemnify and keep the Company indemnified fully against all liabilities, costs and expenses whatsoever and howsoever incurred by the Company in respect of any third parties as a result of the provision of the Services in accordance with the Order, Specification, or the content of the Client’s advertising or web pages which result in claims or proceedings against the Company for infringement of any Intellectual Property Rights or other proprietary rights of third parties, or for breach of confidentiality or contract or for defamation.
5.6. The Client undertakes to comply with all applicable rules, regulations, regulatory guidance, codes of practice and laws relating to its business and its use of the Services, including without limitation laws relating to data protection, electronic communications, advertising, consumer protection, e-commerce, clinical, medical and occupational health activities, and hereby agrees to indemnify and keep the Company indemnified in respect of any and all costs, claims or proceedings brought against the Company by any third party in connection with any breach of the same by the Client.
5.7. Where the Company provides recommendations, technical instructions or proposed changes, the Client shall be responsible for implementing them unless the Company has expressly agreed in writing to carry out the implementation. Where the Company requires access to the Client’s website, hosting, content management system, advertising account, analytics account or other technical system in order to provide the Services, the Client shall provide appropriate access promptly and shall ensure that such access is accurate, secure and authorised.
5.8. The Client shall give prior notice of any alterations to its website, hosting, domain names, email systems, advertising accounts, analytics accounts, technical setup, third-party integrations or other systems which may affect the Services. If such alterations are made by the Client or a third party, the Company shall not be liable for any resulting loss, interruption, reduced performance, ranking change, tracking issue, delivery failure or additional work required.
5.9. Where the Services include search engine optimisation, digital marketing, analytics, advertising or related services, the Client acknowledges that results may depend on factors outside the Company’s control, including the Client’s content, budget, competitors, market conditions, platform changes, website quality and the Client’s implementation of the Company’s recommendations.
5.10. In respect of all White Label Work the Client shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Company arising out of or in connection with the contract between the Client and their client for the White Label Work.
6. Prices
6.1. Unless otherwise expressly stated, all prices shall be in Pounds Sterling and shall be exclusive of VAT and other duties. In the event that duties are introduced or changed after the conclusion of an Order, the Company shall be entitled to adjust the agreed prices accordingly.
6.2. The Client acknowledges that certain Services may involve the licensing of third party Intellectual Property Rights and that the Client may be required to enter into a licence directly with such third party. Unless otherwise expressly stated, all prices shall be exclusive of costs for the acquisition of Intellectual Property Rights for materials to be included in marketing materials, including if relevant (but without limitation) pictures and licences from third party owners and licensors.
6.3. The price stated in the Order shall be an estimate based on a qualified estimate of the number of hours required to provide the Services. This is an estimate only and Services shall be invoiced in accordance with the actual number of hours spent in accordance with the price set out in the Order or Quotation and in the event that the price is not so stipulated, the Client shall be charged at the hourly rate specified in the Company’s then current price list. The Company shall be obliged to update the estimate and budgets on an ongoing basis following, among other things, changes made to an Order.
6.4. Whilst every effort is made to ensure that costing estimates are accurate, the Company reserves the right to amend any estimate, should an error or omission have been made.
6.5. The Order covers only the Services expressly described in the Specification. Any additional functionality, design change, content change, integration, troubleshooting, meeting, accelerated delivery, rework caused by changed instructions, or work arising from third-party changes shall be treated as additional Services and charged at the Company’s then-current rates unless otherwise agreed in writing by the Company.
7. Payment
7.1. The Company shall invoice the Client monthly, either in advance or following Services delivered. Before the Company carries out any work, Clients may be required to provide a non-refundable fees deposit. The deposit shall be retained by the Company and applied against the Client’s final invoice(s) or any unpaid sums due under the Contract. If the Client does not pay an invoice when it is due, the Company may apply the deposit against that invoice and may suspend further Services until the deposit is replaced.
7.2. The Client shall pay each invoice submitted by the Company within 30 days of the date of the invoice and in cleared funds in accordance with clause 7.3 below. The invoice number shall be stated on all payments and payment by BACS, CHAPS, Cheque and Bank Transfer are accepted.
7.3. The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Company to the Client.
7.4. The Company may, at its discretion, apply any payments received from the Client towards any outstanding invoices or charges owed by the Client, regardless of the purpose for which the payment was made or any allocation specified by the payer. Where Services are requested by, used by, or provided for the benefit of more than one person or entity, each such person or entity shall be jointly and severally liable for payment, provided that they have requested, authorised, approved or knowingly accepted the benefit of the Services.
7.5. Without prejudice to any other rights or remedies, the Company may suspend the provision of any Services, including but not limited to hosting, email, and website services, if any invoice remains unpaid more than 30 days after the due date, until such time as all overdue sums (including any applicable interest and charges) are paid in full or an agreed repayment plan is in place.
7.6. In the event of overdue payment, interest shall accrue on the overdue amount at the statutory rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998 or any replacement legislation. Where applicable, statutory interest shall be calculated at 8% per annum above the Bank of England base rate, together with any fixed compensation and reasonable recovery costs recoverable under applicable late payment legislation. The Company shall also be entitled to recover any reasonable costs of debt recovery, including legal fees and debt recovery agency fees, incurred in recovering any overdue amounts.
7.7. Late payment of any material sum, or repeated late payment, shall constitute a material breach of the Contract entitling the Company, at its discretion, to suspend Services, cancel the Contract, or affirm the Contract and assert the usual remedies for breach.
7.8. If the Services cannot be delivered in full or in part due to the Client’s failure to assist, provide access, provide materials, give instructions, approve materials or otherwise co-operate, the Company shall be entitled to invoice for Services already supplied and to charge for any wasted time, reserved time, additional work, delay, rescheduling or remobilisation caused by the Client’s failure.
7.9. If the Client subsequently requires the Company to complete the work within a shorter time frame than specified in the Order the Company reserves the right to charge additional monies to prioritise such projects ahead of pre-planned work.
7.10. The Client may not withhold payment of any invoice, or set off any alleged unused prepaid time, credit, complaint or counterclaim against hosting charges, licence fees, third-party costs, domain renewals, SSL certificates, subscriptions, pass-through costs or any other sums due.
7.11. The Company shall not be obliged to release, transfer, migrate, export or provide access to any files, code, credentials, backups, domains, hosting accounts, configurations or materials while any invoice or charge remains unpaid, except to the extent required by law. Where the Client is legally entitled to receive Client-owned data, the Company may require payment in advance for reasonable export, administration or technical work required to provide it. This clause shall not oblige the Company to release source code, repositories, development files, database structures, proprietary tools, system logic, technical documentation or Company Background IP.
8. Prepaid Development and Support Time Blocks
8.1. Prepaid development and support time blocks shall be valid for 12 months from the invoice date unless otherwise agreed in writing by the Company.
8.2. Any unused prepaid time remaining after this period shall expire automatically, shall be non-refundable, and shall not constitute a debt owed by the Company to the Client.
8.3. Prepaid time blocks are not retainers, service-level commitments, hosting fees, deposits or advance payment for any specific deliverable unless expressly stated in writing by the Company.
8.4. Prepaid time may only be used for development, support, maintenance, investigation, troubleshooting, testing, deployment, project management, meetings, correspondence, liaison with third parties or other technical Services carried out by the Company.
8.5. Prepaid time may not be applied against hosting fees, domain renewals, SSL certificates, software licences, Third Party Services, advertising spend, payment processor charges or other pass-through costs.
8.6. Time shall be deducted at the rate agreed at the time the prepaid block was purchased unless otherwise agreed in writing by the Company.
8.7. Unless otherwise agreed in writing by the Company, Services shall be billed and deducted in minimum increments of 30 minutes.
8.8. Prepaid time shall be consumed in chronological order, with the oldest prepaid block used first.
8.9. Prepaid time may not be transferred to another person, company, domain, project or account without the Company’s prior written consent.
8.10. The Company’s time records shall be treated as accurate evidence of time spent unless the Client identifies a specific error within 7 days of receiving the relevant time statement or invoice.
8.11. Prepaid support time does not guarantee availability, response times, completion times or priority support unless a separate service level agreement has been agreed in writing by the Company.
8.12. The Company reserves the right to pause, refuse or delay Services where prepaid balances have expired or where any account balance remains outstanding.
8.13. Expiry, suspension or termination of Services shall not entitle the Client to any refund, credit, extension or set-off in respect of unused prepaid time, except where required by law.
9. Delays and Complaints
9.1. In the event that the Client proves that the Services are delayed or not in accordance with the Contract, the Company shall be obliged to remedy or redeliver, at its own discretion, without undue delay. In the event that the Services continue to be not in accordance with the Contract after reasonable attempts have been made to remedy this, the Client shall be entitled to cancel the Order in accordance with clause 14.2 (a), provided that the breach is material.
9.2. The Client shall notify the Company of any alleged defect, non-conformity, delay or complaint as soon as reasonably practicable and, in any event, within 7 days of becoming aware of it. The Client shall provide sufficient details to allow the Company to investigate the matter. Failure to notify the Company within that period shall not prevent the Client from raising a genuine latent defect, but the Company shall not be liable for any loss that could reasonably have been avoided by prompt notice.
9.3. The Client hereby acknowledges that certain Services rely upon goods and/or services being provided by third parties (‘Third Party Services’). The Client acknowledges that the Third Party Services will be governed by that third parties’ terms and conditions and that the Company cannot provide any warranties in respect of the Third Party’s Services and will not be liable to the Client for any delays and/or failings in respect of the same. Providers of Third Party Services may provide their own warranties to the Client and the Client must satisfy itself whether or not such warranties (where given) are acceptable for the Client’s business purposes or risk management policies.
9.4. The Company’s only responsibility in respect of the Third Party Services is to take reasonable care and skill when selecting the providers of the same.
9.5. Subject to clause 10.1, the Client’s remedies for late delivery or Services not conforming with the Contract shall be limited to remedy, redelivery, cancellation of the affected Order where the breach is material, or refund of payments made for the affected Services which do not conform with the Contract, subject always to the limitations and exclusions set out in clauses 10 and 11.
9.6. Where the Company submits Deliverables for review, the Client shall either approve them or provide a single consolidated list of specific required corrections within 7 days. If no response is received within that period, the Deliverables shall be deemed accepted.
9.7. Minor defects, snagging items or immaterial issues shall not prevent acceptance where the Deliverables are substantially in accordance with the Order.
9.8. Any changes requested after acceptance, or any request outside the agreed Specification, shall be chargeable as additional Services.
10. Liability
10.1. Nothing in these Terms shall limit or exclude either party’s liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation, wilful misconduct, or any liability which cannot lawfully be limited or excluded.
10.2. Subject to clause 10.1, and except as expressly stated in these Terms, the Company shall not be liable to the Client for any loss or damage arising from or in connection with the provision of the Services or for any claim made against the Client by any third party.
10.3. Subject to clause 10.1, the Company shall not be liable for any of the following losses, whether direct, indirect or consequential:
a) Loss of profits, revenue, anticipated savings, contracts, business opportunity, goodwill, production, use, management time or anticipated benefits;
b) Loss, corruption or unauthorised disclosure of data, except to the extent caused directly by the Company’s breach of clause 4.1;
c) Loss arising from fraudulent clicks, invalid traffic, platform errors, tracking errors or advertising account activity on any account managed by or on behalf of the Client;
d) Loss arising from the Client’s failure to maintain backups, security controls, access controls, business continuity arrangements or appropriate professional review procedures;
e) Loss arising from any third-party claim against the Client, except to the extent expressly stated otherwise in these Terms.
10.4. Subject to clause 10.1, and to the extent such liability is not excluded by clauses 10.2, 10.3 and clause 11 below, the Company’s total aggregate liability arising out of or in connection with any Order, whether in contract, delict, negligence, breach of statutory duty, indemnity, contribution or otherwise, shall not exceed the fees paid or payable by the Client to the Company under that Order in the 12 months immediately preceding the event giving rise to the claim.
11. Other Limitations of Liability
11.1. The Company shall not be liable for downtime, interference, hacking, malware, viruses, cyberattacks, disruptions, interruptions, faulty third-party software, search engines, hosting platforms, payment processors, email providers, content delivery networks or other Third Party Services on which any Service is dependent, except to the extent caused directly by the Company’s breach of clause 4.1. The Company shall use reasonable efforts to assist in remedial efforts if requested by the Client. Any work connected with such remedial efforts shall be charged to the Client separately in accordance with these Terms or, at the Company’s discretion, the Company’s price list applicable from time to time.
11.2. The Company shall not be liable for any changes made without notice by the Client or a third party employed by the Client to domain names, websites, links, technical setup etc. and affecting the Services delivered by the Company. Preceding or subsequent work connected with any adjustments required as a result of such changes shall be charged to the Client in accordance with these Terms or on the basis of the Company’s price list applicable from time to time at the Company’s discretion.
11.3. The Company shall use reasonable endeavours to deliver Services relating to search engine optimisation, links, advertisements, banners, pay per click, analytics, tracking, reporting and related digital marketing services in accordance with the guidelines applicable to the relevant platforms. However, the Company shall not be liable for delayed or non-conforming performance due to changes made to standard terms, assessment algorithms, search criteria, viewing policies, tracking rules, privacy rules, prices, campaign offers, platform restrictions or other matters beyond the Company’s control and reserves the right to make changes to Services as a result of the same. In addition, the Company shall not be liable for changes to or discontinuation of any search engine, analytics platform, advertising platform or related service.
11.4. The Company shall not be liable for Services relating to search engine optimisation, link building, advertisements, banners, sponsorships, analytics, tracking or reporting failing to achieve any minimum number of views, impressions, rankings, positions, clicks, enquiries, registrations, purchases, conversions or other results.
11.5. The Company shall not be responsible for any page, URL, advertisement, listing, tracking tag, analytics event or other item being dropped, disapproved, restricted, excluded, suspended, misreported or treated differently by any search engine, advertising platform, analytics platform or third-party service.
11.6. If the Client does not implement some or all of the Company’s recommendations, the Company shall not bear any liability for any lack of success experienced by the Client relating to the Services.
12. Intellectual Property Rights
12.1. It is the responsibility of the Client to ensure that it has the right to use, provide and authorise the Company to use any Client Materials supplied to the Company for incorporation into or use in connection with the Services. The Client hereby grants, or agrees to procure the grant of, a non-exclusive, royalty-free licence to the Company to use, copy, process, adapt and modify such Client Materials to the extent reasonably necessary to provide the Services.
12.2. The Client shall be responsible for ensuring that the Client Materials and any content, wording, data, forms, templates, workflows or outputs contributed, reviewed, approved, used or published by the Client are accurate, lawful, suitable for the Client’s intended use and not in contravention of any legislation, regulatory requirement, professional obligation, decency requirement, marketing rule, confidentiality obligation or third-party right. The Company shall be entitled to reject, remove or delete such material without incurring any liability and may cancel the relevant Order.
12.3. The Client shall indemnify the Company against all liabilities, damages, losses, costs and expenses suffered or incurred by the Company as a result of any Client Materials, content, wording, data, forms, templates, workflows or outputs contributed, reviewed, approved, used or published by the Client being inaccurate, unlawful, unsuitable for the Client’s intended use, in contravention of any legislation, regulatory requirement, professional obligation, decency requirement, marketing rule, confidentiality obligation or third-party right, or infringing any Intellectual Property Rights of a third party.
12.4. The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described above.
12.5. Unless expressly agreed otherwise in a written agreement signed by the Company, all Intellectual Property Rights in the Company Background IP, software, source code, object code, scripts, frameworks, libraries, templates, database structures, system architecture, tools, methods, know-how, processes, working files, repositories, technical documentation and materials created, developed, adapted, configured, used or supplied by the Company shall remain vested in and owned by the Company or its licensors.
12.6. The Client shall not acquire ownership of any Intellectual Property Rights in the Services, Deliverables or Company Background IP by virtue of payment, possession, access, use, white-labelling, customisation, configuration or incorporation into the Client’s business.
12.7. Subject to payment in full of all sums due, the Company grants the Client a limited, revocable, non-exclusive, non-transferable licence to use the Deliverables solely for the Client’s own business purposes, and only for the period, territory and scope stated in the relevant Order.
12.8. Where the Services comprise hosted software, software as a service, portals, booking systems, certificate systems, administrative systems or similar software, the Client’s licence is limited to accessing and using the hosted service during the paid subscription, support or service period. No source code, repository access, development files, build files, database schema, technical documentation or copy of the software is included.
12.9. No licence, right of use, access right or other permission granted to the Client under these Terms shall take effect, or shall continue, unless and until all invoices due to the Company have been paid in full. The Company may suspend or revoke any licence or access where any invoice is overdue.
12.10. The Client shall not copy, modify, adapt, translate, reverse engineer, decompile, disassemble, reproduce, resell, sublicense, rent, lend, disclose, replicate, create derivative works from, or otherwise attempt to derive the source code, structure, sequence, organisation or underlying ideas of the Company’s software or materials, except to the extent expressly permitted by applicable law and only after giving the Company written notice where legally permitted.
12.11. The Client shall not permit any third party to access, copy, reproduce, rebuild, benchmark, scrape, imitate or use the Services or Deliverables for the purpose of creating a competing or substitute product or service.
12.12. White-labelling, branding, configuration or customisation of the Services for the Client shall not transfer ownership of any Intellectual Property Rights to the Client or to any customer of the Client.
12.13. Unless expressly agreed in writing and signed by the Company, the Client shall not acquire any right to receive, access, possess, copy, modify or use the source code, development files, repositories, build files, deployment scripts, database schemas, system architecture, working files or technical documentation of the Company.
12.14. The Client warrants that the Client Materials do not infringe the rights of any third party and that the Client has all rights, permissions, consents and licences required to provide the Client Materials to the Company and to authorise their use in connection with the Services.
12.15. Where the Client reviews, approves, uses or publishes any content, workflow, certificate, wording, data field, form, template or output, the Client accepts responsibility for its accuracy, legality and suitability for the Client’s intended use.
12.16. The Company may reuse, develop, adapt, improve and commercialise any general skills, knowledge, experience, ideas, concepts, methods, techniques, know-how, tools, templates, code, modules, routines or functionality acquired, created or used in the course of providing the Services, provided that the Company does not disclose the Client’s Confidential Information.
12.17. The Company shall not be prevented from developing, supplying or commercialising any software, functionality, product, service, feature, module, template, method or process which is similar to, competitive with, or performs the same or similar functions as any Deliverable or Service, provided that the Company does not disclose the Client’s Confidential Information or Client Materials.
13. Confidentiality and Personal Data
13.1. A party receiving Confidential Information (Receiving Party) shall keep in strict confidence all technical, commercial, financial, operational, clinical, software, business or other confidential information disclosed to it by the other party (Disclosing Party), its employees, agents or subcontractors, whether before, during or after the Contract. The Receiving Party shall restrict disclosure of such Confidential Information to those of its employees, agents or subcontractors who need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such persons are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause shall survive termination of the Contract.
13.2. The obligations in clause 13.1 shall not prevent disclosure to professional advisers, insurers, subcontractors, regulators, courts, law enforcement bodies or other persons where disclosure is reasonably required for the purposes of the Contract, compliance, insurance, legal proceedings, debt recovery or enforcement of these Terms, provided that the disclosing party takes reasonable steps to preserve confidentiality where appropriate.
13.3. The obligations in clause 13.1 shall not apply to information which is or becomes publicly available otherwise than through a breach of the Contract, is already or lawfully comes into the Receiving Party’s possession without an obligation of confidence, is independently developed without use of the Disclosing Party’s Confidential Information, or is required to be disclosed by law.
13.4. During the term of the Contract and for a period ending 5 years from termination thereof, the Client shall not disclose to any person within its organisation who does not have a need to know, or to any third party, any Company Background IP, non-Client materials, technical information, commercial information, methods, processes, approaches, know-how, software functionality, system logic or other Confidential Information provided by the Company or concerning the way in which the Company provides the Services.
13.5. Each party agrees to comply with its respective obligations under the UK General Data Protection Regulation (UK GDPR), the Data Protection Act 2018, and any other applicable data protection legislation in force from time to time.
13.6. The Client shall indemnify the Company for any loss, including costs incidental to legal proceedings, suffered by the Company as a result of the Client Materials, Client instructions, Client-approved workflows, Client use of the Services, or personal data supplied or controlled by the Client being in contravention of the UK General Data Protection Regulation, the Data Protection Act 2018, applicable marketing law or any other applicable data protection or privacy law. The parties shall notify each other without undue delay of any claims raised against a party as described in the present clause.
13.7. The Client is solely responsible for its clinical, medical, regulatory, professional and legal compliance, including the accuracy of clinical content, medical decisions, certificates, advice, patient or client records, consent processes and use of the Services in its professional practice. The Company provides technical services only and does not provide medical, clinical, legal or regulatory advice.
13.8. Where the Company processes personal data on behalf of the Client as a processor, the parties shall comply with any applicable data processing agreement or written data processing terms agreed between them. In the absence of separate written data processing terms, the Client shall remain responsible for ensuring that appropriate processor terms are agreed before transferring personal data to the Company for processing.
14. Term, Termination and Assignment
14.1. For recurring Services, including hosting, maintenance, support, subscriptions and similar ongoing Services, the Contract shall continue for the period stated in the Order or, where no period is stated, shall continue until terminated by either party giving at least 30 days’ written notice, subject to any minimum term, renewal period or notice period stated in the Order.
14.2. Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if the other party:
a) commits a material breach of the Contract and (if such breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
b) becomes or is insolvent or is unable to pay its debts (within the meaning of the Insolvency Act 1986) or (except for the purposes of a genuine amalgamation or reconstruction) a petition is presented or meeting convened or resolution passed for winding up the defaulting party or the defaulting party enters into liquidation whether compulsorily or voluntarily or compounds with its creditors generally or has a receiver, administrator, or administrative receiver appointed over all or any part of its assets or the defaulting party ceases to carry on all or a substantial part of its business.
14.3. The Company shall, in addition to all other rights and remedies under these Terms, be entitled to suspend or terminate this Contract without notice in the event that any of its charges for the Services are not paid in accordance with these Terms.
14.4. Upon termination, for whatever reason, each party shall return or delete the other party’s materials received pursuant to the Contract where reasonably requested and where not required to be retained by law or for legitimate business, accounting, insurance, compliance or evidential purposes. Termination shall not require the Company to provide or transfer source code, repositories, development files, database structures, proprietary tools, system logic, technical documentation or Company Background IP. If relevant, the Client shall remove any code, scripts, access credentials or integrations supplied by the Company from its websites or systems without undue delay. If the Client fails to do so, the Company shall be entitled to invoice the Client for any subsequent Services required without such invoicing amounting to a waiver of the Company’s right to terminate the Contract.
14.5. The Client shall not be permitted to assign or transfer all or any part of its rights or obligations under the Contract and these Terms without the prior written consent of the Company.
14.6. The Company shall be entitled to assign or subcontract any of its rights or obligations under the Contract and these Terms and the Client acknowledges that certain elements of the Services will be provided by third parties.
15. Force Majeure
15.1. Neither party shall be held liable for a Force Majeure Event.
15.2. If a party believes that a Force Majeure Event has occurred, such party shall immediately inform the other party of the start and end of the Force Majeure Event.
15.3. Notwithstanding the other provisions of the present Terms, each party shall be entitled to terminate the Contract without liability to the other by written notice to the other party in the event that the performance of the Contract is impeded for more than 6 months due to a Force Majeure Event.
16. Miscellaneous
16.1. The Company reserves the right to modify or discontinue, temporarily or permanently, the Services where reasonably necessary for technical, commercial, legal, security, operational or third-party service reasons. The Company shall not be liable to the Client or any third party for any modification to or discontinuance of these Services save for the return of any prepaid sums in connection with Services which are subsequently not provided. For the avoidance of doubt, prepaid development and support time blocks are governed exclusively by clause 8 and are not refundable except where the Company agrees otherwise in writing or where required by law.
16.2. Upon termination and subject to payment of all sums due, except to the extent prohibited by law, the Company shall provide reasonable assistance to export Client Materials and data owned or controlled by the Client in a commonly used format. Such assistance shall be chargeable unless expressly included in the Order. The Company shall not be required to provide software, source code, database structures, proprietary tools, system logic, technical documentation or Company Background IP as part of any data export.
16.3. The Company may retain copies of records, correspondence, invoices, time records, technical logs, backups, Client Materials and other materials to the extent reasonably required for legal, regulatory, accounting, insurance, compliance, evidential, security or legitimate business purposes, subject always to its obligations under applicable data protection law.
16.4. During the term of the Contract and for a period of 12 months thereafter, the Client shall not knowingly solicit, employ, engage or attempt to engage any employee, contractor or subcontractor of the Company who has been involved in providing the Services, except with the Company’s prior written consent.
16.5. The failure of either party to enforce or to exercise at any time or for any period of time any right pursuant to these Terms does not constitute, and shall not be construed as, a waiver of such terms or rights and shall in no way affect that party’s right later to enforce or to exercise it.
16.6. If any term of these Terms is found illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining Terms, be deemed omitted from these Terms and shall in no way affect the legality, validity or enforceability of the remaining Terms which shall continue in full force and effect and be binding on the parties to the Contract.
16.7. Except where these Terms are updated by the Company under clause 2.1, any valid alteration to or variation of these Terms must be in writing signed on behalf of each of the parties by duly authorised officers.
16.8. Except as expressly stated in these Terms, no person other than the Company and the Client shall have any right to enforce any term of the Contract, whether under statute, common law, Scots law or otherwise.
16.9. All notices must be in writing and sent to Sharp Applications Ltd., 91 West Savile Terrace, Edinburgh, Scotland, EH9 3DP, or such other address or email address as the Company may notify to the Client. Notices to the Client may be sent to the postal or email address last provided by the Client to the Company. Notices sent by email shall be deemed received on the next Business Day after sending, provided that no failed delivery notification is received.
16.10. No notice of termination, breach, claim, complaint, legal dispute or formal demand shall be validly served by SMS, WhatsApp, social media message, telephone call or other informal messaging channel unless expressly acknowledged in writing by the receiving party as a formal notice.
16.11. No delay, informal discussion, informal message, technical assistance, continued provision of Services or temporary accommodation by the Company shall constitute a waiver of any right, remedy, payment obligation, Intellectual Property Right, licence restriction or contractual requirement unless expressly confirmed in writing by the Company as a waiver.
17. Entire Agreement
17.1. The parties acknowledge and agree that the Contract supersedes any prior agreement, understanding or arrangement between the parties, whether made orally or in writing, and constitutes the entire agreement between the Company and the Client relating to these Services. Therefore, except as expressly provided, all other conditions and warranties, whether implied, statutory or otherwise, are excluded to the fullest extent permitted by law.
17.2. No statement, representation, assurance, promise, estimate, forecast, explanation or description made by or on behalf of the Company shall have contractual effect unless expressly set out in the Order or expressly incorporated into the Contract in writing by the Company.
18. Law and Jurisdiction
18.1. The parties shall use reasonable endeavours to resolve disputes through good faith negotiation where practicable. Nothing in this clause shall prevent either party from exercising any right or remedy at any time, including suspension, termination, debt recovery, interim relief or legal proceedings.
18.2. The Contract and any dispute or claim arising out of or in connection with it, including non-contractual disputes or claims, shall be governed by and construed in accordance with Scots law. The parties irrevocably agree that the Scottish courts shall have exclusive jurisdiction.
18.3. Nothing in this clause 18 shall prevent the Company from seeking interim, protective or injunctive relief in any competent court where reasonably necessary to protect its Intellectual Property Rights, Confidential Information, systems, data, business interests or ability to recover sums due.
18.4. The remedies available under these Terms are cumulative and not exclusive of any rights or remedies available by law.