Terms of business
Terms and conditions for doing business with Bananabrains Ltd
- The Client hereby agrees to engage Bananabrains to provide the Client with the following services (the "Services") for a period of time as agreed in the proposal sent to you, until completion, or until notice is given to terminate the Agreement: Consultancy, software application development, and/or website development.
Term of Agreement
- The term of the Agreement (the "Term") will begin on the date of the Agreement and will remain in full force and effect indefinitely until terminated as provided in the Agreement.
- In the event that either Party breaches a material provision under the Agreement, the non-defaulting Party may terminate the Agreement immediately and require the defaulting Party to indemnify the non-defaulting Party against all reasonable damages.
- The Agreement may be terminated at any time by mutual agreement of the Parties upon 10 days' written notice.
- Except as otherwise provided in the Agreement, the obligations of Bananabrains will end upon the termination of the Agreement.
- Monthly subscription Agreements can be ended by the Client giving 10 days' written notice to Bananabrains that they wish to terminate the Agreement.
Price and payment
- Except as otherwise provided in the Agreement, all monetary amounts referred to in the Agreement are in GBP.
- The Client will pay Bananabrains the fees as agreed in the proposal sent to you.
- Invoices submitted by Bananabrains to the Client are due upon receipt.
- How to pay is set out in the invoices sent by Bananabrains to the Client.
- Confidential information (the "Confidential Information") refers to any data or information relating to the business of the Client which would reasonably be considered to be proprietary to the Client including, but not limited to, accounting records, business processes, and client records and that is not generally known in the industry of the Client and where the release of that Confidential Information could reasonably be expected to cause harm to the Client.
- Bananabrains agrees that they will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which Bananabrains has obtained, except as authorised by the Client or as required by law, provided that Bananabrains shall provide prompt notice to the Client of any legal requirement to disclose Confidential Information. The obligations of confidentiality will apply during the Term and will survive indefinitely upon termination of the Agreement.
- All written and oral information and material disclosed or provided by the Client to Bananabrains under the Agreement is Confidential Information regardless of whether it was provided before or after the date of the Agreement or how it was provided to Bananabrains.
Ownership of Intellectual Property
- All intellectual property and related material (the "Intellectual Property") that is developed or produced under the Agreement, will be the property of Bananabrains unless specifically stated in the Proposal or Contract sent to the Client. The Client is granted a non-exclusive limited-use licence of this Intellectual Property.
- For further details regarding the ownership and acceptable use of the content on the Bananabrains website, please refer to the Terms and Conditions of Use page.
- Title, copyright, intellectual property rights and distribution rights of the Intellectual Property remain exclusively with Bananabrains.
- Except to the extent paid in settlement from any applicable insurance policies, and to the extent permitted by applicable law, each Party agrees to indemnify and hold harmless the other Party, and its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying party, its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with the Agreement. This indemnification will survive the termination of the Agreement.
Limitation of Liability
- Bananabrains shall not be held liable for any direct, indirect, incidental, consequential, special, or exemplary damages arising out of or in connection with the services provided. This includes, but is not limited to, any loss of profit, data, business, goodwill, or reputation, regardless of whether such damages were foreseeable or arise in contract, tort, negligence, strict liability, or otherwise. The maximum liability of Bananabrains for any claim related to the services provided shall not exceed the total amount paid by the client for those services.
- Bananabrains will endeavour to deliver the Services to the highest standard, but if the Client finds the standard unsatisfactory, no refunds will be given.
- Bananabrains will consider discretionary refunds in some circumstances, such as non-performance or failure to deliver the agreed-upon services, but this does not imply any acceptance of liability.
Dispute resolution process
- In the event of any dispute or claim arising out of or relating to the services provided by Bananabrains, both parties agree to first attempt to resolve the matter amicably through good faith negotiations. If the dispute cannot be resolved through negotiations within a reasonable period of time, either party may initiate mediation.
- Mediation: Both parties agree to participate in mediation conducted by a mutually agreed-upon mediator. The mediator's fees and expenses shall be divided equally between the parties, or as otherwise agreed upon. Mediation shall take place in Solihull, England or any other location mutually agreed upon by the parties.
- Litigation: If mediation is unsuccessful or not pursued, any unresolved dispute or claim shall be subject to exclusive jurisdiction and venue in the courts of Birmingham, England. Both parties consent to the personal jurisdiction of such courts and waive any objections or defenses related to venue or forum non conveniens.
- Legal Fees: In the event of any legal action or arbitration arising out of or relating to these terms or the services provided, the prevailing party shall be entitled to recover its reasonable attorney's fees and other costs incurred in connection with such action or arbitration.
- Neither party will be liable for any failure to perform its obligations under the contract if that failure is due to circumstances beyond its reasonable control, including, but not limited to, acts of God, natural disasters, war, terrorism, civil unrest, labor disputes, government actions, power outages, or internet disruptions ('Force Majeure Event').
- Upon the occurrence of a Force Majeure Event, Bananabrains shall promptly notify the affected party in writing and provide details of the Force Majeure Event and its anticipated impact on the services. During the continuance of the Force Majeure Event, Bananabrains's obligations under these terms and conditions shall be suspended to the extent that they are affected by the Force Majeure Event.
- If the Force Majeure Event continues for a period of 30 days, either party may terminate these terms and conditions by providing written notice to the other party. In such event, neither party shall be liable to the other for any damages, losses, or expenses resulting from such termination.
- Any party asserting a claim of Force Majeure shall have the burden of proving the existence and impact of the Force Majeure Event and its effect on the party's ability to perform its obligations under these terms and conditions.
- The Agreement will be governed by and construed in accordance with the laws of England.
- In the event that any of the provisions of the Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of the Agreement.
- The waiver by either Party of a breach, default, delay or omission of any of the provisions of the Agreement by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions.