1  APPLICABILITY OF CONDITIONS

i  These terms apply to and govern all provision of services (the “Services”) by IfM Engage Ltd. (“the Company”) to any other organisation or person (“the Client”), and shall prevail over and have effect notwithstanding and to the exclusion of any terms, conditions and / or provisions which the Client may seek to establish (the “Contract(s)”). No alteration of these terms shall be valid unless such alteration is accepted in writing by both parties prior to a contract being concluded.

ii  A Contract shall only come into effect on the Company’s acceptance of the Client’s written instructions, which acceptance shall only be on the basis that these terms apply to the exclusion of all or any other terms or conditions.

iii  The Client understands, acknowledges and accepts that the Services are developmental in nature. The Client’s attention is drawn to section 13 (Liability) below.

2  PROPOSALS AND PRIOR DOCUMENTATION

i  All letters, proposals or quotations made by the Company are prepared in good faith. However, no letter, proposal or quotation made by the Company constitutes an offer and the Company reserves the right to withdraw or revise any proposal or quotations at any time prior to acceptance by the Company of the Client’s written instructions.

ii  If a proposal and / or any other prior documentation is referenced in the Client’s written instructions and/or in the Company’s acceptance of these instruction, the proposal or prior documentation will form part of the Contract between the Company and Client, but shall be accepted on the basis that these conditions apply.

3  SCOPE OF WORK, REPORT

i  The scope of the work for the Services will be based on the Contract documentation modified only by any subsequent agreement in writing between the parties.

ii  Unless otherwise agreed in writing, any additional work undertaken at the request of the Client will be paid for by the Client at rates pro-rata to rates agreed for the initial programme.

4  LOGO USAGE

Neither party shall use the name or any trademark or logo of the other party or its affiliates (including, in the case of the Company, the University of Cambridge) in any marketing or other publication, without first obtaining the other’s written consent, provided, however, that the foregoing shall not require the Company or its affiliates to seek consent for using the other party’s or its affiliates’ names, trademarks or logos in any promotional or other similar materials that simply list the name of the participants or members in the Shoestring Membership. This clause shall survive termination of this Agreement.

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5  COMMENCEMENT, TIMETABLE, MULTI-STAGE SERVICES

i  Services will, unless otherwise agreed, commence as soon as may be reasonably practicable, bearing in mind other prior commitments of staff employed on the Contract, after acceptance by the Company of written instructions from the Client.

ii  All reasonable efforts will be made by the Company to provide the Services to meet any agreed timetable. For the avoidance of doubt, any such timetable is by way of estimate only, time shall not be of the essence, and it is not material to the Contract. The Client shall provide all reasonable assistance necessary for the performance of the Services, in particular by providing information, drawings, materials, samples, access to premises and the use of a telephone, etc., when required by the Company.

iii  In the case of Services to be undertaken in stages, if more than two months elapses between the completion of one stage and the commencement of the next, due to the Client’s delay, the Company may at its discretion and without liability withdraw from the Contact for the remaining stage or stages but shall be entitled to payment for work already carried out.

6  PAYMENT AND VAT

i  Advance payments, as specified in the Contract or proposal, shall be paid in full to the Company prior to any work commencing.

ii  In the case of Services to be paid for in instalments or stages, payment in respect of each instalment or stage shall be made prior to commencement of any work by the Company in respect of the next instalment or stage.

iii  VAT is additional to all prices (where applicable dependent on location of Services and Client) and is payable at the rate ruling at date of invoice.

iv  Unless specifically included within the Contract, travelling and subsistence expenses will be charged additionally.

v  If any payment is delayed, the Client will pay the Company interest on all overdue monies at the rate of 1.5% per month for the full delay period from the due date.

7  MODELS AND EQUIPMENT

All models or experimental equipment provided by or at the expense of the Company and used during the course of the work shall remain the property of the Company, unless otherwise specifically agreed in writing.

8  INFORMATION FROM THIRD PARTIES

The Company shall carry out work for the Client with due care, but shall not be liable for the effects of errors, omissions or other defects in any reports, drawings, designs, specifications, or other information arising out of information or goods supplied to the Company by third parties.

9  TEST REPORTS, SAMPLES AND CLIENT’S GOODS

i  Reports of tests and analytical reports prepared for the Client by the Company refer only to the actual goods or samples submitted for test or report, unless otherwise stated.

ii  Any remainder of goods or samples left after examination or testing will only be returned to the Client on written request, when the Client will pay transit charges. Such remainders will normally be disposed of by the Company at the expiration of one month from the despatch of the Report unless the Client has given alternative written instruction to the Company.  The Company reserves the right to make a charge for any waste disposal or storage costs it may incur.

iii  The Client will inform the Company in advance of any known safety hazards or particular handling requirements relating to any samples, etc.

10  CONFIDENTIAL INFORMATION, PUBLICITY

i  Without prejudice to Clause 11 hereof, and except as set out in (ii) and (iii) below, all information concerning the Services, including any results, shall be regarded as confidential by both parties and neither party shall disclose such confidential information to any third party at any time without the other party’s prior written consent or except as provided below.  

ii  Clause 10(i) shall not apply to information which is in the public domain or subsequently comes into the public domain through no fault of the receiving party or lawfully becomes available from sources other than the disclosing party.

iii  The Company shall be entitled to disclose confidential information if so required by law including under the Freedom of Information Act 2000.

iv  The provisions of this Clause 10 shall replace and supersede any confidentiality provisions contained in any prior agreement between the parties relating to the subject-matter of this Contract.

v  All peer to peer forum discussions and platforms are to be conducted under the ‘Chatham House rule’ (defined as follows: when a meeting, or part thereof, is held under the Chatham House rule, participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed).

11  INTELLECTUAL PROPERTY

i  For the purposes of these terms and conditions, “Background” shall be defined as all information, know-how, and data made available by a party hereto for use in the Services, but not generated in the Services. All Background used in connection with the Services shall remain the property of the party introducing the same.

ii  With the exception of intellectual property rights relating to improvements to the Company’s Background, including improvements to the Company’s methodologies, the Company shall assign, upon request, all intellectual property rights in the results of the Services to the Client (provided that this obligation shall not extend to any moral rights in any copyright works nor to the Company’s know-how). Such assignment is conditional upon the Client paying for the Services in full within sixty (60) days of the Company’s invoice date.  Upon assignment the Client shall grant to the Company a non-exclusive, royalty-free licence in the results of the Services for its own business purposes.

12  THIRD PARTY INTELLECTUAL PROPERTY AND OTHER RIGHTS

i  The Company will not knowingly use any rights owned by third parties in the performance of Services. Subject to this, the Company shall be under no further obligation or liability in respect of third party rights and the Company makes no warranty that the results of the Services are free from infringement of third party rights and the Client shall be entirely responsible for the use to which it puts the same.

ii  The Client acknowledges that it is its responsibility to make all necessary patent or other searches and enquiries as to the existence of relevant third party rights.

13  LIABILITY

i  Nothing in these terms or conditions excludes or restricts the liability of either party to the other for liability for any fraudulent misrepresentation by a party or death and personal injury caused by negligence of a party or any other liability that may not, by operation of law, be excluded.  The rest of this section 13 is subject always to this section 13(i).

ii  The Client understands, acknowledges and accepts that the Services are of a collaborative and developmental nature. The Company accepts no liability for the suitability of the Services or consequences of reliance on results of the Services.  The Client acknowledges that it has not relied on any representation or warranty that the Services or the results of the Services will achieve a specific aim nor provide any particular result or outcome.

iii  As such the Client understands, acknowledges and accepts that it is reasonable that the Company excludes (and the Company hereby excludes) all terms implied by the Supply of Goods and Services Act 1982 to the fullest extent permitted by law from this Contract.

iv  The Client is and remains responsible for making appropriate health and safety assessments and taking appropriate health and safety precutions when carrying out work as a result of the Services.

v  The Company makes no warranty, express or implied, as to the accuracy of the results of the Services.

vi  The parties agree and declare that the obligations of the Company shall cease upon the delivery of the Services and that no liability, either direct or indirect, shall rest upon it for the effects of any product or process that may be produced by the Client or any other party, notwithstanding that the formulation of such product or process that may be produced by the Client or any other party may be based on the results of the Services.

vii  The Company’s aggregate liability arising from the Contract for the performance of the Services shall be limited to the total Contract price.

viii  Save as set out in the previous sub-clauses of this clause 13, the Company excludes all warranties, representations or liabilities to the fullest extent permitted by law. Without prejudice to the generality of the foregoing, the Company excludes any liability for business interruption, loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information; loss of or damage to goodwill, economic loss and any indirect or consequential loss..

14  FORCE MAJEURE

In the event that either party is delayed or impeded in the performance of its obligations under the Contract by any cause beyond its reasonable control, it shall be entitled to such extension of time for such performance as may be fair and reasonable in all circumstances, provided always that if the duration of any such delay or impediment exceeds ninety (90) days either party may give seven (7) days’ notice to terminate the Contract, and the Client will pay the Company all monies due as if the Contract had been cancelled by agreement as in Clause 15. Under no circumstances shall the Company be liable for failure or delay in performing or fulfilling the Contract as a result of any cause beyond its reasonable control.

15  CANCELLATION

Items may be returned up to 14 days after receipt of order, if the Client is not satisfied with the Service. After 14 days, no Contract may be cancelled without the Company’s prior written consent. Where cancellation is agreed by the parties (or notice served under clause 14), the Company shall be reimbursed for all costs and expenses properly incurred on the Services, including all costs and expenses arising from prior commitments made by the Company in relation to the Services which fall due for payment after the cancellation date.

16  TERMINATION

The Company may terminate this Agreement by giving thirty (30) days’ written notice to the Client for any reason at the sole discretion of Engage (termination for convenience). In the event that the Company  terminates this Agreement part way through the Services (or membership if applicable) term, the Company shall reimburse the fee for that period to the Client on a pro rata basis after deduction of any costs already incurred or committed.

The Company may further terminate this Agreement immediately on written notice to the Client and without liability or requirement to reimburse fees in the event that the Client is in material breach of this Agreement (including failure to pay the Fee) and, if capable of remedy, has failed to remedy that breach within a reasonable time. For the avoidance of doubt, breach of the confidentiality clause above shall constitute an irremediable material breach entitling the Company to terminate this Agreement immediately.

Any termination of this Agreement shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance of force of any provision in this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.

If the Client breaches the terms of these conditions and, in the case of a breach capable of remedy, fails to remedy such breach with 14 days of being requested to do so by the Company, or enters into a trust Deed for its or his creditors, or a Deed of Arrangement, or commits an act of bankruptcy, or becomes insolvent, or compounds with its creditors, or if an order or a resolution is passed for the winding up of the Client, or if a receiver or administrator is appointed of any of the Client’s assets or undertaking, or if the Client takes  or suffers analogous action in consequence of debt or fails to make any payment when due under the provisions of, or commits any other breach of any other Contract between the Company and Client, or if the Client merges with or is taken over by another person, firm or company, the Company may (by notice in writing to the Client), without prejudice to any of its other rights, suspend any further provision of services and / or terminate the Contract without liability. In this case the Client will pay the Company all monies due as if the Contract had been cancelled by agreement as in Clause 15.

17  SUB-CONTRACTORS

The Company may sub-contract part or all of the Services to the University of Cambridge or to any of its third party associates.

18  DATA PROTECTION

Where the client is signing up for membership, client agrees and understands that the Company will process personal data of members’ employees, including but not limited to names and contact details, and will share that personal data with the University and other members. The member will ensure that its employees are aware of the need for the Company to process and share their personal data in this way. This clause shall survive termination of this Agreement.

i  Without prejudice to the general obligations detailed in these terms, each of the parties shall in the provision or use of the Services (as appropriate) comply with the Data Protection Act 2018 ("DPA"), the General Data Protection Regulation (EU) 2016/679 ("GDPR") and any other legislation in force in the UK in connection with data protection and privacy (each with effect from the date on which it becomes part of English law) as amended from time to time (the “Data Protection Legislation”).

ii  For the avoidance of doubt, ‘personal data’, ‘processing’, ‘controller’, ‘processor’ and ‘data subject’ shall have the same meaning as in the Data Protection Legislation.

iii  Unless specifically agreed in writing between them to the contrary, the parties agree that where such processing of personal data takes place, and for the purposes of this clause 18, the Client shall be the ‘controller’ and the Company shall be the ‘processor’, such terms are as defined in the Data Protection Legislation, as may be amended from time to time.

iv  The processor shall ensure that it and any sub-processor identifies the personal data as listed in the table at schedule 1, and in processing the personal datadoes so only on documented instructions from the controller.

v  The processor ensures that persons authorised to process the personal data are bound by contractual confidentiality obligations which reflect the requirements of these clauses and the need to keep the personal data secure and confidential.

vi  The processor shall implement appropriate technical and organisational measures to ensure a level of data security appropriate to the risk, including inter alia as appropriate:

(a)  the pseudonymisation and encryption of the personal data;

(b)  the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;

(c)  the ability to restore the availability and access to the personal data in a timely manner in the event of a physical or technical incident; 

(d)  a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing;

and in assessing the appropriate level of security account may be taken of adherence to an approved code of conduct, and shall be taken of:

(a)  the state of the art, the costs of implementation and the nature, scope, context and purposes of processing;

(b)  the risk of varying likelihood and severity for the rights and freedoms of natural persons;

(c)  the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to the personal data transmitted, stored or otherwise processed.

vii  The processor shall not engage another processor (a sub-processor) unless the controller has given a specific or general written authorisation. A list of current sub-processors is in the Company’s privacy policy. Where such consent is given, the processor:

(a)  shall inform the controller of any intended changes to a general written authorisation to add or replace processors, thereby giving the controller the opportunity to object to such changes;

(b)  shall impose the same data protection contractual obligations as set out in this clause 18;

(c)  acknowledges that the processor remains fully liable to the controller for the performance of the sub-processor.

viii  The processor shall assist the controller by appropriate technical and organisational measures, so far as is possible, to respond to requests for exercising the data subject’s rights under the Data Protection Legislation.

ix  The processor shall assist the controller with:

(a)  their joint obligation to ensure that appropriate technical and organisational measures are in place;

(b)  notifying any personal data breach to the supervisory authority and the data subject; and

(c)  data protection impact assessments and consulting the supervisory authority where an assessment indicates the processing involves unmitigated high risk.

x  At the choice of the controller, the processor shall delete or return all the personal data after the end of the provision of Services relating to processing, and shall delete existing copies unless Data Protection Legislation requires storage of the personal data.

xi  The processor shall make available to the controller all information necessary to demonstrate compliance with the obligations laid down in this clause 18, and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller; and immediately inform the controller is, in its opinion, an instructions infringes Data Protection Legislation.

Further information about the Company’s approach to data protection are specified in its data protection policy, which can be found at: https://www.ifm.eng.cam.ac.uk/privacy-policy/.  For any enquires or complaints regarding data privacy, you can contact our Data Protection Officer, Clare Lumsden, at the following e-mail address: cl771@cam.ac.uk.

19  ASSIGNMENT

Neither the Company nor the Client shall be entitled, without the prior consent in writing of the other party, to assign its rights under the Contract.

20  APPLICABLE LAW AND DISPUTE RESOLUTION

i  If any dispute arises out of, or in connection with the Contract, the parties will attempt in good faith to settle it by negotiation.

ii  If the parties are unable to settle any dispute by negotiation within thirty (30) days, the parties will attempt to settle it by mediation in accordance with the Centre for Dispute Resolution (CEDR) Model Mediation Procedure.

iii  To initiate mediation a party must give notice in writing to the other party requesting mediation in accordance with sub-clause (ii).

iv  The Contract and all questions of construction, validity and performance under the Contract shall be governed by English law and (without prejudice to sub-clauses (i), (ii) and (iii)) subject to the exclusive jurisdiction of the English courts.