Applicable to our Services and Materials
1.1 – These Conditions apply to and form part of the Contract between Vibrant Talent Development and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
1.2 – No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that Vibrant Talent Development otherwise agrees in writing.
1.3 – No variation of these Conditions or to a Services Schedule or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of Vibrant Talent Development.
1.4 – Vibrant Talent Development may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply Services and are incapable of being accepted by the Customer.
1.5 – Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Contract.
2.1 – The fee for the Materials and/or Services shall be as set out in the Services Schedule or, in default of such provision, shall be calculated in accordance with Vibrant Talent Development’s scale of charges as advised by Vibrant Talent Development and received and acknowledged by the Customer before the delivery or performance dates as specified in the Services Schedule (Charge).
2.2 – The Charges are exclusive of:
2.2.1 – VAT (or equivalent sales tax); and
2.2.2 – out-of-pocket expenses and outlays, such as travel, accommodation, mileage, which shall be charged in addition at Vibrant Talent Development’s standard rates.
2.3 – The Customer shall pay any applicable VAT to Vibrant Talent Development on receipt of a valid VAT invoice.
2.4 – Vibrant Talent Development may increase the Charges with immediate effect by written notice to the Customer where there is an increase in the direct cost to Vibrant Talent Development of supplying the relevant Materials or Services which exceeds 5% and which is due to any factor beyond the control of Vibrant Talent Development.
3.1 – Vibrant Talent Development shall invoice the Customer for the Materials or Services prior to the delivery of the Materials or performance of the Services (as the case may be).
3.2 – The Customer shall pay all invoices:
3.2.1 – in full without deduction or set-off, in cleared funds within 21 days of the date of each invoice; and
3.2.2 – to the bank account nominated by Vibrant Talent Development.
3.3 – Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:
3.3.1 – Vibrant Talent Development may, without limiting its other rights, charge interest on such sums at 3% a year above the base rate of Bank of England from time to time in force, and
3.3.2 – interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
4.1 – A Services Schedule shall specify whether the Services are to be:
4.1.1 – performed at the Location on the date(s) specified in the Services Schedule; or
4.1.2 – performed at an alternative premises set out in the Services Schedule (as the case may be). The Customer shall make such premises available for Vibrant Talent Development so that Vibrant Talent Development is able to make the Services available to be performed within the period set out in the Services Schedule.
4.2 – The Services shall be deemed performed on completion of each of the Services as specified in the Services Schedule.
4.3 – Time of performance of the Services is not of the essence. Vibrant Talent Development shall use its reasonable endeavours to meet estimated dates for performance, but any such dates are approximate only.
4.4 – Vibrant Talent Development shall not be liable for any delay in or failure of performance caused by:
4.4.1 – the Customer’s failure to: (i) make the Location available, (ii)
prepare the Location in accordance with Vibrant Talent Development’s instructions or (iii) provide Vibrant Talent Development with adequate instructions for performance or otherwise relating to the Services; or
4.4.2 – Force Majeure.
5 Use of the Trade Marks
5.1 Subject to the terms and conditions of any separate licensing agreement between Vibrant Talent Development and the Customer and the Customer complying with these Conditions and the Contract, Vibrant Talent Development shall grant to the Customer during the period of the Contract a limited, non-exclusive, non-transferable, non-sublicensable licence to use the Trade Marks on or in connection with the Services.
5.2 – The Customer shall not be entitled to use any of the Trade Marks for any purpose other than to perform the Contract.
5.3 – Except as expressly set out in the Contract or otherwise expressly agreed in writing by between Vibrant Talent Development and the Customer, no Intellectual Property Rights of either party or otherwise are assigned or transferred.
5.4 – The Customer shall not make any representations or undertake any acts which indicate that the Customer has any right, title or interest in or to the Trade Marks other than under the terms of these Conditions and the Contract.
6. Copyright, Authors’ Rights and Database Rights
6.1 – The Customer acknowledges that all content included in or made available through any Service, such as text, graphics, logos, images, audio clips, digital downloads and data compilations is the property of Vibrant Talent Development and is protected by applicable copyright, authors’ rights and database right laws.
6.2 – The Customer undertakes not to extract and/or re-utilise parts of the content of any Service without the express written consent of Vibrant Talent Development.
7. Use of Mooqi Products
8. The Customers shall not incorporate any portion of the Mooqi Products into their own programs or compile any portion of it in combination with your own programs, transfer it for use with another service, or sell, rent, lease, lend, loan, distribute or sub-license the Mooqi Products or otherwise assign any rights to the Mooqi Products in whole or in part. The Customer shall not use the Mooqi Products for any illegal purpose.
9. The Customer undertakes not to assist or authorise any other person to copy, modify, reverse engineer, decompile or disassemble, or otherwise tamper with the Mooqi Products whether in whole or in part, or create any derivative works from or of the Mooqi Products.
10. Any data generated by or derived from the use of Mooqi Products by the Customer under clause 5.1 shall belong to the Vibrant Talent Development and shall continue to remain the property of Vibrant Talent Development after termination of the Contract.
11. The Customer shall be responsible for maintaining the confidentiality of their account and password and for restricting access to your computer, and to the extent permitted by applicable law, agree to accept responsibility for all activities that occur under the Customer’s account or password.
12. The Customer shall ensure that the password is kept confidential and secure.
13. The Customer undertakes to not use any Service: (i) in any way that causes, or is likely to cause, any Service, or any access to it to be interrupted, damaged or impaired in any way, or (ii) for fraudulent purposes, or in connection with a criminal offence or other unlawful activity, or (iii) to cause annoyance, inconvenience or anxiety.
14. Vibrant Talent Development reserves the right to refuse service, terminate accounts or remove or edit content if the Customer is in breach of applicable laws, these Conditions, the Contract or any other applicable terms and conditions, guidelines or policies.
15. Access to premises
15.1 – To enable Vibrant Talent Development to comply with its obligations under the Contract:
15.1.1 – the Customer shall allow or procure permission for Vibrant Talent Development and any other person(s) authorised by Vibrant Talent Development to have reasonable access to the Customer’s premises and the Services’ connection points or, where network connection services form part of the Services, such location on the Customer’s premises and/or any neighbouring premises as Vibrant Talent Development reasonably requires and shall at all times provide such reasonable assistance as Vibrant Talent Development requests.
15.1.2 – Vibrant Talent Development will endeavour to carry out work by appointment and during normal working hours, but may request the Customer to provide access at other times. If at the request of the Customer Vibrant Talent Development carries out work outside its normal working hours the Customer will be responsible for Vibrant Talent Development reasonable additional charges.
15.1.3 – unless otherwise agreed the Customer shall at its own expense carry out such site preparations as Vibrant Talent Development may reasonably require.
16.1 – Vibrant Talent Development warrants that, at the time of performance (the Warranty Period), the Services shall:
16.1.1 – conform in all material respects to their description and the specification as contained in the Services Schedule;
16.1.2 – be free from material defects;
16.1.3 – be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II s 13;
16.1.4 – in the case of media on which the results of the Services are supplied, be free from defects in material and workmanship and of satisfactory quality within the meaning of the Sale of Goods Act 1979.
16.2 – The Customer warrants that it has provided Vibrant Talent Development with all relevant, full and accurate information as to the Customer’s business and needs.
16.3 – Vibrant Talent Development shall, at its option, correct, repair, remedy, re-perform or refund the Materials or the Services that do not comply with clause 16, provided that the Customer:
16.3.1 – serves a written notice on Supplier not later than five Business Days from delivery or performance in the case of defects discoverable by a physical inspection, or within a reasonable period of time from delivery or performance in the case of latent defects;
16.3.2 – such notice specifies that some or all of the Materials or Services do not comply with clause 16.1 and identifying in sufficient detail the nature and extent of the defects; and
16.3.3 – gives Vibrant Talent Development a reasonable opportunity to examine the claim of the defective Materials or Services.
16.4 The provisions of these Conditions shall apply to any Materials or Services that are corrected, repaired, remedied or re-performed with effect from delivery or performance of those Materials or Services.
16.5 – Except as set out in this clause 16:
16.5.1 – Vibrant Talent Development gives no warranty and makes no representations in relation to the Materials or Services; and
16.5.2 – shall have no liability for their failure to comply with the warranty in clause 16.1,
and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982 and ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted.
17. Indemnity and insurance
17.1 – The Customer shall indemnify, and keep indemnified, Vibrant Talent Development from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by Vibrant Talent Development as a result of or in connection with the Customer’s breach of any of the Customer’s obligations under the Contract.
17.2 – The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom to cover its obligations under the Contract. On request, the Customer shall supply so far as is reasonable evidence of the maintenance of the insurance and all of its terms from time to time applicable.
18. Limitation of liability
18.1 – The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 18.
18.2 – Subject to clauses 18.5 and 18.6, Vibrant Talent Development’s total liability shall not exceed the amount of Charge payable by the Customer.
18.3 – Subject to clauses 18.5 and 18.6, Vibrant Talent Development shall not be liable for consequential, indirect or special losses.
18.4 – Subject to clauses 18.5 and 18.6, Vibrant Talent Development shall not be liable for any of the following (whether direct or indirect):
18.4.1 – loss of profit;
18.4.2 – loss or corruption of data;
18.4.3 – loss of use;
18.4.4 – loss of production;
18.4.5 – loss of contract;
18.4.6 – loss of opportunity;
18.4.7 – loss of savings, discount or rebate (whether actual or anticipated);
18.4.8 – harm to reputation or loss of goodwill.
18.5 – The limitations of liability set out in clauses 18.2 to 18.4 shall not apply in respect of any indemnities given by either party under the Contract.
18.6 – Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
18.6.1 – death or personal injury caused by negligence;
18.6.2 – fraud or fraudulent misrepresentation;
18.6.3 – any other losses which cannot be excluded or limited by applicable law;
18.6.4 any losses caused by wilful misconduct.
19. Confidentiality and announcements
19.1 – The Customer shall keep confidential all Confidential Information of Vibrant Talent Development and of any Affiliate of Vibrant Talent Development and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
19.1.1 – any information which was in the public domain at the date of the Contract;
19.1.2 – any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
19.1.3 – any information which is independently developed by the Customer without using information supplied by Vibrant Talent Development or by any Affiliate of Vibrant Talent Development; or
19.1.4 – any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
19.2 – This clause shall remain in force in perpetuity.
19.3 The Customer shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.
20. Processing of personal data
Vibrant Talent Development collects and processes personal information in accordance with its Privacy Notice.
21 Force majeure
Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such the event causes a delay or failure in performance and when it ceases to do so. If the Force Majeure event continues for a continuous period of more than 30 days, either party may terminate the Contract by written notice to the other party.
22.1 – Vibrant Talent Development may terminate the Contract or any other contract which it has with the Customer at any time by giving notice in writing to the Customer if:
22.1.1 – the Customer commits a material breach of the Contract and such breach is not remediable. For avoidance of doubt, a breach of any provisions under clauses 5, 6 and 7 shall be deemed a material breach;
22.1.2 – the Customer commits a material breach of the Contract which is not remedied within 14 days of receiving written notice of such breach;
22.1.3 – the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within 21 days after Vibrant Talent Development has given notification that the payment is overdue; or
22.1.4 – any consent, licence or authorisation held by the Customer is revoked or modified such that the Customer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.
22.2 – Vibrant Talent Development may terminate the Contract at any time by giving notice in writing to the Customer if the Customer:
22.2.1 – stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
22.2.2 – is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if Vibrant Talent Development reasonably believes that to be the case;
22.2.3 – becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
22.2.4 – has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
22.2.5 – has a resolution passed for its winding up;
22.2.6 – has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
22.2.7 – is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced;
22.2.8 – has a freezing order made against it;
22.2.9 – is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title in those items;
22.2.10 – is subject to any events or circumstances analogous to those in clauses 22.2.1 to 22.2.9 in any jurisdiction;
22.2.11 – takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clauses 22.2.1 to 22.2.10 including for the avoidance of doubt, but not limited to, giving
notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.
22.3 – If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle Vibrant Talent Development to terminate the Contract under this clause 22, it shall immediately notify Vibrant Talent Development in writing.
22.4 – Termination or expiry of the Contract shall not affect any accrued rights and liabilities of Vibrant Talent Development at any time up to the date of termination.
23.1 – Any notice or other communication given by a party under these Conditions shall:
23.1.1 – be in writing and in English;
23.1.2 – be signed by, or on behalf of, the party giving it (except for notices sent by email); and
23.1.3 – be sent to the relevant party at the address set out in the Contract
23.2 – Notices may be given, and are deemed received:
23.2.1 – by hand: on receipt of a signature at the time of delivery;
23.2.2 – by Royal Mail Recorded Signed For post: at 9.00 am on the two Business Day after posting;
23.2.3 – by Royal Mail International Tracked & Signed post: at 9.00 am on the sixth Business Day after posting; or
23.2.4 – by email provided confirmation is sent by first class post: on receipt of a delivery receipt email from the correct address.
23.3 – Any change to the contact details of a party as set out in the Contract shall be notified to the other party in accordance with clause 23.1.
23.4 All references to time are to the local time at the place of deemed receipt.
24. Cumulative remedies
The rights and remedies provided in the Contract for Vibrant Talent Development only are cumulative and not exclusive of any rights and remedies provided by law.
Unless stated otherwise, time is of the essence for any date or period specified in the Contract in relation to the Customer’s obligations only.
26. Further assurance
The Customer shall at the request of Vibrant Talent Development, and at the Customer’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.
27. Entire agreement
27.1 – The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
27.2 – Each party acknowledges that it has not entered into the Contract or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not
expressly set out in the Contract or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
27.3 – Nothing in these Conditions purports to limit or exclude any liability for fraud.
No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, Vibrant Talent Development.
29.1 – The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without Vibrant Talent Development’s prior written consent.
29.2 – Notwithstanding clause 29.1, the Customer may perform any of its obligations and exercise any of its rights granted under the Contract through any Affiliate provided that it gives Vibrant Talent Development prior written notice of such subcontracting or assignment including the identity of the relevant Affiliate. The Customer acknowledges and agrees that any act or omission of its Affiliate in relation to the Customer’s rights or obligations under the Contract shall be deemed to be an act or omission of the Customer itself.
30. Set off
30.1 – Vibrant Talent Development shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract or under any other contract which Vibrant Talent Development has with the Customer.
30.2 – The Customer shall pay all sums that it owes to Vibrant Talent Development under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
31. No partnership or agency
The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
32. Equitable relief
The Customer recognises that any breach or threatened breach of the Contract may cause Vibrant Talent Development irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to Vibrant Talent Development, the Customer acknowledges and agrees that Vibrant Talent Development is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
33.1 – If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
33.2 – If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
34.1 – No failure, delay or omission by Vibrant Talent Development in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
34.2 – No single or partial exercise of any right, power or remedy provided by law or under the Contract by Vibrant Talent Development shall prevent any future exercise of it or the exercise of any other right, power or not remedy by Vibrant Talent Development.
34.3 – A waiver of any term, provision, condition or breach of the Contract by Vibrant Talent Development shall only be effective if given in writing and signed by Vibrant Talent Development, and then only in the instance and for the purpose for which it is given.
35. Compliance with law
The Customer shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.
36. Conflicts within contract
If there is a conflict between the terms contained in the Conditions and the terms of the Services Schedule, schedules, appendices or annexes to the Contract, the terms of the Conditions shall prevail.
37. Costs and expenses
The Customer shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (and any documents referred to in it).
38. Third party rights
38.1 – Except as expressly provided for in clause 38.2, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
38.2 – Any Affiliate of Vibrant Talent Development shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.
39. Governing law
The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of Northern Ireland.
The parties irrevocably agree that the courts of Northern Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).
41. Definitions and interpretation
41.1 – In these Conditions the following definitions apply:
|Affiliate||means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;|
|Business Day||means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in Northern Ireland;|
|Charge||has the meaning given in clause 2.1;|
|Conditions||means Vibrant Talent Development’s terms and conditions of sale set out in this document;|
|Confidential Information||means any commercial, financial or technical information, information relating to the Materials or Services, plans, know-how or trade secrets which is obviously confidential or has been identified as such, or which is developed by the Customer in performing its obligations under, or otherwise pursuant to the Contract;|
|Contract||means the agreement between Vibrant Talent Development and the Customer for the sale and purchase of the Services and/or Materials incorporating these Conditions and the Services Schedule;|
|Control||has the meaning given to it in section 1124 of the Corporation Tax Act 2010;|
|Customer||means the person who purchases the Materials or Services from Vibrant Talent Development and whose details are set out in the Services Schedule;|
|Force Majeure||means an event or sequence of events beyond a party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including those involving Vibrant Talent Development’s or its suppliers’ workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;|
|Intellectual Property Rights||means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights and, in each case: (a) whether registered or not (b) including any applications to protect or register such rights (c) including all renewals and extensions of such rights or applications (d) whether vested, contingent or future (e) to which the relevant party is or may be entitled, and (f) in whichever part of the world existing; which for avoidance of doubt shall include Trade Marks;|
|Location||means the address for delivery of the performance of the Services as set out in the Services Schedule;|
|Materials||means the materials and documentation and other physical material set out in the Service Schedule confirmed in writing by the parties as included in the Materials and to be supplied by Vibrant Talent Development to the Customer, which shall include Mooqi Products;|
|Mooqi Products||means the employment engagement electronic platform being developed by Vibrant Talent Development;|
|Services||means the services set out in the Services Schedule or confirmed in writing by the parties as included in the Services and to be supplied by Vibrant Talent Development to the Customer;|
|Services Schedule||means the schedule containing particulars of the Services that the Customer engaged Vibrant Talent Development to provide;|
|Trade Marks||means the following marks:
(1) Vibrant Talent Development logo and word marks; and
(2) Mooqi logo and word marks.
|Vibrant Talent Development||means Vibrant Talent Development Limited, a company registered in Northern Ireland with registration number NI632704 and having its registered address at 42 Magherana Park, Waringstown, Craigavon, County Armagh, Northern Ireland, BT66 7QF;|
|Personnel||all employees, officers, staff, other workers, agents and consultants of Vibrant Talent Development, its Affiliates and any of their sub-contractors who are engaged in the performance of the Services from time to time;|
|VAT||means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Materials or Services; and|
|Warranty Period||has the meaning given in clause 16.1.|