1. Definitions and Interpretations
1.1 In these Conditions except where the context otherwise requires, the following terms shall have the following meanings:
1.1.1 “Agreement” means the Quotation and these Conditions;
1.1.2 “Breakdown” means any failure or stoppage in the proper mechanical functions of Equipment;
1.1.3 “Catapult” means Satellite Applications Catapult Limited or Satellite Applications Catapult Services Limited as appropriate;
1.1.4 “Confidential Information” means any information (whether or not recorded in documentary form, or stored on any magnetic or optical disk or memory) relating to the business, services, affairs and finances of a Party, for the time being confidential to that Party and trade secrets, including (by way of illustration only and without limitation) technical data and know-how relating to the business of a Party or any of its business contacts, project plans, records of planned and actual expenditure, details of projects and experiments, proposals, applications and prospectuses, graphs, charts, presentations and documents, company financial information, details of intellectual properties (whether registered or unregistered) and applications for them, technical summaries, reports, details of organisations and their business processes, names and other contact details of individuals and organisations, and any information which a Party or the Personnel is told is confidential and information treated as confidential by either Party and any information which has been given to a Party, in confidence, by customers, suppliers or other persons;
1.1.5 “Conditions” means these Terms and Conditions of Facilities Hire which form part of the Agreement;
1.1.6 “Consumable” means any item or matter which is required for the proper use or functioning of the Facility;
1.1.7 “Customer” means the organisation named in the Quotation;
1.1.8 “Equipment” means any equipment forming all or part of the Facility;
1.1.9 “Facility” means the equipment, laboratory, meeting room, office, hot desk, catering services, computer services and/or any other matter listed in the Quotation;
1.1.10 “Group Company” means in relation to a company, each and any subsidiary or holding company from time to time of that company, and each and any subsidiary from time to time of a holding company of that company.
1.1.11 “Hire Fees” means the price set out in the Quotation and payable by the Customer for the Facility hire;
1.1.12 “Hire Period” means the period of hire of the Facility by the Customer as set out in the Quotation;
1.1.13 “Insurance Cover” means the insurance cover referred to in condition 4 below and of the value set out in the Quotation;
1.1.14 “Parties” means the Catapult and the Customer and “Party” shall be construed accordingly;
1.1.15 “Quotation” means the particulars of the Facility hire signed by both Parties which refers or is annexed to these Conditions and which forms part of this Agreement;
1.2 In these Conditions:-
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic mail, facsimile transmission or similar means;
1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3 any reference to the parties includes a reference to their respective personal representatives, heirs, successors in title and permitted assignees;
1.2.4 any reference to a person includes any body corporate, unincorporated association, partnership or any other legal entity;
1.2.5 words importing the singular number include the plural and vice versa;
1.2.6 words importing any gender include any other gender; and
1.2.7 headings are for convenience only and shall not affect its interpretation.
2. Hire Period
2.1 The Hire Period may be extended in writing signed by both Parties.
2.2 Where the Agreement is terminated in accordance with Condition 9 below, the Hire Period shall not be deemed to have ended until any Equipment has been returned to the Catapult or any laboratory, meeting room, office or hot desk forming all or part of the Facility has been vacated by the Customer and all Customer’s property removed.
3. Title and Risk
3.1 Title and all rights to the Facility shall at all times be vested in the Catapult and the Customer acknowledges that it has no right, title, or property in the Facility.
3.2 Risk in any Equipment shall pass to the Customer upon it leaving the physical possession of the Catapult, and shall not revert back to the Catapult until such Equipment is back in the Catapult’s possession, notwithstanding the expiry of the agreed Hire Period.
4. Insurance Cover
4.1 The Customer shall be responsible for arranging insurance cover, on a full replacement basis and at a value not less than that set out in the Quotation, in respect of the Facility against the risks of loss, theft and damage, including but not limited to damage beyond economic repair. The proceeds of any claim in respect of such insurance shall be held by the Customer on trust for the Catapult. Upon the request of the Catapult the Customer shall provide the Catapult immediately with written evidence of such insurance.
5.1 The Catapult agrees to provide training and instruction in the correct use and/or operation of the Facility to the Customer such training to be delivered on the first day of the Hire Period or as otherwise agreed in writing by the Parties.
6. Customer’s Obligations
6.1 The Customer shall pay the Hire Fees strictly in accordance with the payment terms set out in the Quotation.
6.2 The Customer agrees, during the Hire Period and thereafter until the Facility is returned to the Catapult or vacated in accordance with condition 2.2 above, that it shall:
6.2.1 keep the Facility in its possession and control on the Catapult’s premises or, if moveable Equipment, on such other premises as agreed to in writing in advance by the Catapult, and ensure that it is secure against loss, damage and theft;
6.2.2 use the Facility in a proper, safe and prudent manner, and in accordance with any instructions issued for it by the Catapult and for the purpose for which it was designed, and ensure that the Facility is operated with all due care and attention and, in the case of Equipment or laboratories, used by properly skilled and trained personnel in accordance with the Catapult’s relevant instructions;
6.2.3 keep the Facility in the condition which it was in at the beginning of the Hire Period, and, if appropriate, in good working order, fair wear and tear excepted ion both cases;
6.2.4 pay the Hire Fees in the amount and on the terms set out in the Quotation;
6.2.5 be responsible for the cost of any Consumable used in the operation of the Facility, and shall ensure that any Consumable is compatible with the Facility;
6.2.6 not hold itself out as owner of the Facility, nor shall it, charge, encumber, sell, let, lease, hire or otherwise dispose of, part with, or abandon the Facility, nor shall it permit or suffer the creation of any lien or distress over the Facility;
6.2.7 not assign or transfer any of its rights or obligations under the Agreement;
6.2.8 ensure that any identification marks, labels or signs on or fixed to the Facility are not removed, defaced, amended, obscured or otherwise subjected to interference, including those which identify the Facility as belonging to the Catapult;
6.2.9 permit the Catapult, its employees and agents access to the Facility for the purpose of inspecting, and if appropriate,, repairing, servicing and replacing any part of the Facility;
6.2.10 not, without the previous written consent of the Catapult, attach or affix any Equipment to any land or premises so as to cause it to become a permanent or immovable fixture on such land or premises;
6.2.11 where any Equipment is attached or affixed to land or premises in accordance with condition 6.2.10 above, ensure that such Equipment shall be capable of being removed without material injury to such land or building or the Equipment and shall take all necessary steps to prevent title to such Equipment from passing to the owner or landlord of such land or building;
6.2.12 repair and make good at the Catapult’s convenience, any damage to any part of the Facility howsoever caused including, without limitation, that caused by the affixation of any Equipment to or its removal from any land or building (whether such affixation or removal is effected by the Catapult or the Customer) and to indemnify the Catapult against all loss, damage or liability it may incur or sustain as result of such affixation or removal;
6.2.13 ensure that the Facility is returned to the Catapult or vacated in the same condition that it was in at the beginning of the Hire Period (fair wear and tear excepted);
6.2.14 ensure that use of the Facility by the Customer complies with the Catapult’s Health and Safety policies issued from time to time and any relevant Government or Local Authority Regulations, including any applicable licensing requirements; and
6.2.15 comply with the Catapult’s Anti-Corruption Policy for Contractors.
7. Catapult ‘s Obligations
7.1 The Catapult shall make the Facility available to the Customer during the Hire Period in accordance with the Agreement.
7.2 The Catapult agrees during the Hire Period and thereafter until the Facility is returned to it or vacated by the Customer that it shall:
7.2.1 provide training in accordance with Condition 5; and
7.2.2 test the Facility in accordance with any relevant statutory requirement.
8. Breakdown, Damage and Repair
8.1 In the event that the Equipment suffers a Breakdown the Customer must immediately stop use of the Equipment and disconnect the Equipment from the Consumable (where appropriate).
8.2 The Customer must immediately inform the Catapult of any Equipment Breakdown or damage to the Facility.
8.3 The Customer must not undertake or permit any repair work on the Equipment or the Facility without the express written permission of the Catapult.
8.4 Subject to any express agreement to the contrary, all repair work to the Equipment or the Facility shall be carried out by the Catapult or its employees or agents, and shall be carried out at the earliest mutually convenient opportunity.
8.5 Where the Equipment Breakdown or damage to the Facility is caused by the negligence of or misuse by the Customer, the cost of repair or replacement of the Equipment or repair of the Facility shall be borne by the Customer.
8.6 Where the Equipment Breakdown is caused by fair wear and tear or by a fault in the Equipment the cost of repair shall be borne by the Catapult.
8.7 The Catapult shall use reasonable endeavours to rectify and Repair any Breakdown or Damage but shall not be liable for any losses (direct, indirect, consequential or otherwise) howsoever arising.
9.1 The Catapult may terminate the Agreement immediately by notice in writing to the Customer and without compensation to the Customer if:
9.1.1 the Customer, in the reasonable opinion of the Catapult, commits a breach of the terms of the Agreement, which, for the avoidance of doubt includes, without limitation, any breach of condition 6.2.2 above; or
9.1.2 the Customer’s use of the Facility constitutes, in the reasonable opinion of the Catapult, a breach or possible breach of security of any kind whatsoever; or
9.1.3 the Customer has any execution levied, enforced or sued against it or has a winding up petition presented against it, goes into receivership; or otherwise enters into any composition with its creditors; or
9.1.4 the Customer shall do or allow to be done any act or thing that may reasonably be expected to prejudice or endanger the Facility or the Catapult’s property or rights in it.
9.2 Upon termination of the Agreement the Customer shall forthwith return the Equipment to the Catapult and remove all its property from and vacate any laboratory, meeting room, office or hot desk forming all or part of the Facility.
9.3 At any time after termination of the Agreement, the Catapult shall be entitled to enter premises to remove the Equipment to which the Customer had moved it in accordance with condition 6.2.1 above, and this Condition shall continue in effect notwithstanding termination of the Agreement.
10.1 The Catapult does not hire the Facility with any representation concerning the condition, performance or quality of the Facility or with or subject to any term, condition or warranty express or to be implied by statute, common law or otherwise and all such representations, conditions, warranties whether relating to the capacity, age, satisfactory quality, description, condition of use of the Facility or to the suitability or fitness of the Facility for a particular or any purpose are expressly excluded and/or waived by the Customer.
10.2 In the event that the Catapult is found to be liable in respect of any loss or damage to the Customer or the Customer’s property, it is agreed that the liability of the Catapult shall be limited to a sum equal to the Hire Fees.
10.3 The Catapult shall not be liable in contract, tort or otherwise (including any liability for negligence) for any loss of revenue, business, contracts, anticipated savings or profits, or any loss of use of facilities or any special indirect or consequential loss howsoever arising.
10.4 Nothing in these Conditions shall exclude or limit the liability of the Catapult for death or personal injury caused as a result of the Catapult’s negligence, breach of contract or otherwise.
11.1 The Customer shall indemnify and hold harmless the Catapult against all liabilities, damages, losses, costs and other expenses in relation to any claims or actions brought against it by any third party for any injury or loss to person or property (including personal injury and death) caused by or in connection to, or arising out of the Customer’s use of the Facility during the Hire Period.
12. Confidential Information
12.1 The Parties shall not, either during the Hire Period or at any time after the termination of this Agreement:
12.1.1 divulge or communicate to any person, company, business entity or other organisation;
12.1.2 use for their own purposes or for any purpose other than the hire of the Facility; or
12.1.3 through any failure to exercise due care and diligence cause any unauthorised disclosure of
any Confidential Information relating to the other.
12.2 These restrictions shall cease to apply to any information which becomes available to the public generally, otherwise than through the default of a Party; which is already lawfully in the possession of the receiving Party, prior to its disclosure by the disclosing Party, and the disclosing Party is not under any obligation of confidence in respect of that information; or where the disclosing Party has given prior written consent that the information may no longer be considered confidential; or where the Confidential Information is otherwise required to be disclosed by law (in which case, where legal to do so, the disclosing Party shall give the owning Party as much notice as possible to the disclosure of the Confidential Information).
13. State Aid
13.1 The Parties acknowledge that the Catapult is a ‘Research Organisation’ as defined under European Union legislation and has an obligation to ensure, and is subject to audits to demonstrate, that all activities it undertakes is compliant with State aid rules including its activities under this Agreement. The Parties therefore agree that, notwithstanding any other provision of this Agreement:
13.1.1 the Catapult shall be able to cooperate with any investigation by any grant funder or the European Commission with respect to this Agreement to the extent reasonably necessary to satisfy such investigation and the Customer shall provide reasonable assistance to the Catapult to satisfy such investigation;
13.1.2 the Catapult shall use all reasonable endeavours to protect the confidentiality of the Customer’s Confidential Information under this clause and shall only disclose such Confidential Information as is strictly necessary for the purpose of the investigation and put in place obligations of confidentiality as restrictive as those within this Agreement insofar as it is able;
13.1.3 the Catapult shall keep the Customer informed of any active and specific investigation into this Agreement and, where possible, liaise with the Customer concerning any response to the European Commission; and
13.1.4 the Parties shall comply with any ruling of the European Commission.
14. Nature of the Agreement
14.1 The Customer may not assign, mortgage, or charge (otherwise than by floating charge) or sub-license any of its rights hereunder, or sub-contract or otherwise delegate any of its obligations hereunder, except with the written consent of the Catapult.
14.2 Nothing in the Agreement shall create, or be deemed to create, a partnership, or the relationship of principal and agent, between the Parties.
14.3 This Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of both Parties.
14.4 Each Party acknowledges that, in entering into the Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in the Agreement and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
14.5 No failure or delay by either Party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
14.6 If any provision of the Agreement is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the Agreement shall continue to be valid as to its other provisions and the remainder of the affected provision.
15. Force Majeure
15.1 For the purposes of the Agreement “Force Majeure” means, in relation to either Party, any circumstances beyond the reasonable control of that Party including, without limitation, any strike, lock-out or other form of industrial action termination, civil disturbance, war, act of terrorism, risk, fire, explosion, storms, flood, earthquake, epidemic or other natural physical disaster.
15.2 If any Force Majeure occurs in relation to either Party which affects or may affect the performance of any of its obligations under the Agreement, it shall forthwith notify the other Party as to the nature and extent of the circumstances in question.
15.3 Neither Party shall be deemed to be in breach of the Agreement, or shall otherwise be liable to other, by reason of any delay in performance, or the non-performance, of any of its obligations under, to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other Party, and the time for performance of that obligation shall be extended accordingly.
16. Contracts (Rights of Third Parties) Act 1999
16.1 As an exception to the general contractual exclusion of a third party’s right to enforce any term of the Agreement, any Group Company of the Catapult shall be permitted to enforce the terms of the Agreement in place of the Catapult as if it were a party to the Agreement itself.
16.2 Save as provided in 16.1 above, a person who is not a party to this Agreement shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999.
17. Notices and Service
17.1 Any notice or other information required or authorised by these Conditions to be given by either Party to the other shall be given by:-
17.1.1 delivering it by hand;
17.1.2 sending it by pre-paid registered post; or
17.1.3 sending it by email or facsimile transmission
to the other Party at the address set out at the top of this Agreement or such other address as communicated to the other party in writing for this purpose.
17.2 Any notice or information given by post in the manner provided by Condition 17.1.2 which is not returned to the sender as undelivered shall be deemed to have been given on the second day after the envelope containing it was so posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted, and that it has not been so returned to the sender, shall be sufficient evidence that the notice or information has been duly given.
17.3 Any notice or information sent by email or facsimile transmission shall be deemed to have been duly given upon receipt by the sender of a confirmation email from the recipient in the case of email or confirmation of delivery is received by the sender in the case of facsimile transmission.
17.4 Service of any document for the purposes of any legal proceedings concerning or arising out of these Conditions shall be effected by either Party by causing it to be delivered to the other Party at its registered or principal office, or to such other address as may be notified to it by the other Party in writing from time to time.
18 Applicable Law and Jurisdiction
18.1 The laws of England and Wales shall apply to the whole of the Agreement.
18.2 The parties hereby agree to the non-exclusive jurisdiction of the English Courts.