Terms and conditions
In respect of Foxbury Drake Consulting Ltd.
Version 1. Published 14 November 2019.
These Conditions, together with any and all other documents referred to herein, set out the terms on which we provide our Services to users through this Application.
Please read these Conditions carefully and ensure that you understand them before using our Services. If you do not agree to comply with and be bound by these Conditions, you must not use our Services.
The Application is owned and operated by Foxbury Drake Consulting Ltd (trading as MAGNEZIUM), Registered Number 10181492, (the “Supplier”) whose registered office is at Taxassist Accountants Liss Business Centre, Station Road, Liss, Hampshire, England, GU33 7AW.
1.1 defined terms have the meaning given in the Definitions section below;
1.2 a person includes a natural person, or unincorporated body (whether or not
having separate legal personality);
1.3 a reference to a party includes its personal representatives, successors and permitted assigns;
1.4 a reference to a statute or statutory provision is a reference to such statute or
statutory provision as amended or re-enacted includes any subordinate legislation made under that statute or statutory provision as amended or re-enacted;
1.5 any obligation on a party not to do something includes an obligation not to allow that thing to be done;
1.6 any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.7 a reference to writing or written includes faxes and emails.
2. Basis of Contract
2.1 The Application will guide the Customer through the Order process. The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions. The offer shall be deemed to be accepted when the Supplier processes the Order, at which point the Contract shall come into existence.
2.2 The Contract constitutes the entire agreement between the parties in relation to its subject matter. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the
Supplier which is not set out in the Contract.
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s promotional materials, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. Supply of Services
3.1 The Supplier shall supply the Services to the Customer in accordance with the Order in all material respects.
3.2 The Supplier 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.
3.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4. Customer’s Obligations
4.1 The Customer shall:
4.1.1 ensure that the terms of the Order and any information it provides in the
Order are complete and accurate;
4.1.2 cooperate with the Supplier in all matters relating to the Services;
4.1.3 provide the Supplier, its employees, agents, consultants and subcontractors with access to the Customer’s account data, as stored with the Application database, as reasonably required by the Supplier in order to provide essential technical support for the Services; and
4.1.4 provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such
information is accurate and kept up-to-date in all material respects.
4.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
4.2.1 the Supplier shall, without limiting its other rights or remedies, have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
4.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause; and
4.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5. Charges and Payment
5.1 The Charges for the Services shall be at the monthly rate set out on the Application at the time the Order is placed. The Customer acknowledges that different monthly rates may apply to different service plans that are either currently available, or that may become available in the future.
5.2 The Supplier will inform the Customer of upcoming Charges for Services provided, via an automated email notification, 7 days before the next subscription billing date. If the Customer requests to cancel the Services, then the Supplier will cancel the Services with immediate effect and the Customer will not be eligible for a refund for any Charges already paid for either the upcoming or current billing period.
5.3 The Charges shall be payable on the each upcoming Subscription billing date (or via invoices, in the event that invoices are manually raised by the Supplier). Payment shall automatically taken from the Customer’s payment card to the bank account nominated by the Supplier. Time of payment and provision of valid card payment details is of the essence.
5.4 Unless otherwise stated, the price of the Services will be inclusive of amounts in respect of value added tax (“VAT”). Where exclusive of VAT, the Customer shall pay to the Supplier such additional amounts in respect of VAT as are chargeable on the
supply of the Services.
5.5 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Supplier reserves the right to retry payment for 7 days. If the payment is still not made in full within the 7 day grace period, then the Application will automatically suspend the Services and terminate the Contract.
5.6 The Supplier reserves the right to amend the Charges at any time and to add, alter, or remove special offers from time to time. Changes in price will not affect any Order that a Customer has already purchased but will apply to any future Orders.
5.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
6. Intellectual Property Rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier or its licensors. The Supplier shall assert all moral rights arising out of Chapter IV of the Copyright, Designs and Patents Act 1988. Throughout the term of the Contract, the Supplier shall be deemed to automatically a limited, royalty-free, non-exclusive, non-sublicenseable, non-transferable licence of any and all such rights to the Customer solely to the extent necessary to use the Services.
6.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
6.3 All Supplier Materials are the exclusive property of the Supplier, or its licensors (as the case may be).
7.1. Each party (‘receiving party’) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (‘disclosing party’), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party, its business, its products and services which the receiving party may obtain or which is disclosed to that party by the disclosing party pursuant to or in connection with the Contract (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such).
7.2 The Supplier shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging its obligations under the Contract, and shall ensure that such employees,
agents and subcontractors comply with the obligations set out in this clause as
though they were a party to the Contract.
7.3 The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory
authority or by a court of competent jurisdiction. This clause shall survive termination of the Contract.
7.4 The restrictions in this clause shall not apply to any information which is or becomes publicly available otherwise than through a breach of these Conditions, is already or
rightly comes into the receiving party’s possession without an accompanying obligation of confidence, or which is independently developed by the receiving company.
8. Limitation of Liability and Indemnity
8.1 Nothing in these Conditions shall limit or exclude the Supplier’s (or its employees’, agents’ or subcontractors’) liability for:
8.1.1 death or personal injury caused by its negligence, or the negligence of its
employees, agents or subcontractors;
8.1.2 fraud or fraudulent misrepresentation; or
8.1.3 any other liability to the extent such liability may not be excluded or limited as a matter of law.
8.2 Subject to the aforesaid:
8.2.1 the Supplier shall under no circumstances whatever be liable to the
Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss (whether direct or indirect) of actual or anticipated income, savings or profits, contracts, business, business opportunities, revenue, turnover, savings, goodwill, reputation loss or corruption of data or information, or wasted expenditure, or for any indirect or consequential loss arising under or in connection with the Contract; and
8.2.2 the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no
circumstances exceed the Charges paid by the Customer to the Supplier in
the 6-month period prior to the claim.
8.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.4 The Customer shall indemnify the Supplier against any costs, liability, damages, loss, expenses, claims or proceedings arising from loss or damage (including that belonging to any third parties appointed by the Supplier) caused by any breach of these Conditions or any other liabilities arising out of the use of the Application or the Services by the Customer or its agents or employees.
8.5 This clause shall survive termination of the Contract.
9.1. The Customer may cancel Services ordered by providing the Supplier with 7 days notice in writing, before the next upcoming payment due date. If the Customer cancels Services within 7 days of the next upcoming payment due date, then the Supplier reserves the right to charge the Customer for a full month of Services at the applicable rate.
9.2 The Customer may end the Contract at any time if the Supplier has informed it of a forthcoming change to its Services, or to these Conditions that the Customer does not agree to. The Customer also has a legal right to end the Contract at any time if the Supplier is in breach of it. The Customer may also be entitled to a full or partial
refund and compensation. For more details of your legal rights, please refer to your local Citizens Advice Bureau or Trading Standards Office.
9.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract at any time by giving the Customer 24 hours notice in writing . The Supplier may suspend provision of the Services under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under this Contract on the due date for payment or the Supplier believes that the Customer may be unable to pay its debts as and when they fall due, or if the Customer stops carrying on business or threatens to do so.
9.4 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
9.5 In the event of Termination of the Contract, either due to a cancellation request by the Customer or lapsed payment, then the Customer’s Account data will become unavailable. If the Customer does not re-activate the Subscription within one full year of cancellation, then the Customer’s Account data and associated users’ personal data will be automatically erased or anonymised.
10. Consequences of Termination
On termination of the Contract for any reason:
10.1. the Customer shall immediately pay to the Supplier any outstanding Charges and interest due;
10.2 the Customer will not either during the Contract or for a period of 12 months after the Contract ends, in any capacity, offer to employ or engage, or seek to solicit or entice away, employ or engage, solicit or entice away, or otherwise facilitate the
employment or engagement of any employee or contractor of the Supplier; and
10.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or
10.4 clauses which expressly or by implication survive termination shall continue in full
force and effect.
11. Force Majeure
11.1. For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other
party), 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.
11.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
11.3 If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 14 days, the Supplier shall, without limiting its other rights or remedies,
have the right to terminate this Contract immediately by giving written notice to the Customer.
12.1. Assignment and other dealings.
12.1.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under
the Contract to any third party or agent.
12.1.2 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
12.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be sent to the Customer via email. Invoices and receipt notifications shall be addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause.
12.2.2 A notice or other communication shall be deemed to have been received if sent by email, one Business Day after transmission.
12.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.3.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
12.3.2 If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the
12.4.1 A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.5 No partnership or agency.
12.5.1 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
12.6 Third parties.
12.6.1 A person who is not a party to the Contract shall not have any rights to enforce its terms.
12.7.1 The Supplier may revise these Conditions from time to time in response to changes in relevant laws and other regulatory requirements. If the Supplier changes these Conditions as they relate to the Customer’s Subscription, it will give the Customer reasonable advance notice of the changes and provide details of how to cancel if the Customer is not happy with them.
12.8 Governing law.
12.8.1 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by and construed in accordance with the law of England and Wales.
12.9.1 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
1. Business Day, Business Days
means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
2. Charge, Charges
means the charges payable by the Customer for the supply of the Services purchased via our Application in accordance with the “Charges and Payment” clause.
3. Condition, Conditions
means the terms and conditions set out in this document as amended from time to time in accordance with the Conditions.
4. Contract, Subscription
means the agreement and contract between the Supplier and the Customer for Services in accordance with these Conditions and any other terms referred to herein.
means the deliverables set out in the Order produced by the Supplier for the Customer.
6. Intellectual Property Rights
means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
means the Customer’s order for Services as set out on a purchase order form; written or electronic acceptance of the Seller’s price, estimate or quotation; or otherwise, as the case may be.
means software services, including Account data storage and management, as supplied by the Supplier to the Customer in accordance with the Order.
means all data relating to the Customer, including but not limited to the organisational data, associated user data and the billing and payment information.