Terms of use

Part 01

Who these terms are between

Role: supplier

They govern your use of this website at vivanlabs.co.uk. They also set out the standing terms on which we would supply engineering services, but a supply happens only under a separate signed engagement letter or statement of work.

Nothing on this website is an offer capable of acceptance. Descriptions of what we do are an invitation to discuss work, not a commitment to perform it, and no contract for services comes into existence until both sides have signed one.

Part 02

Using this website

Role: supplier

You may read this site, quote from it, link to it and criticise it. You may not scrape it at a rate that degrades it for others, present its content as your own, or use our name or marks as the primary identifier of your own product or service.

We try to keep the site accurate but we do not warrant that it is free of error, and we may change it without notice. Nothing here is professional advice on your particular circumstances.

Part 03

How an engagement would work

Role: supplier

Order of precedence

Where a signed statement of work conflicts with the engagement letter, the statement of work prevails for that work. Where either conflicts with these terms, the signed document prevails. These terms fill the gaps rather than override the deal.

Change control

A change to scope, timetable or price is agreed in writing before the work changes. We do not treat a comment in a meeting as an instruction to spend your money differently.

Acceptance

Deliverables are subject to an acceptance period stated in the statement of work. Acceptance is not withheld for a defect that does not materially affect use, and where a deliverable is rejected we get a reasonable opportunity to remedy it before any other remedy is triggered.

What we would not accept

• Production credentials held by us permanently. Access is time limited and named.
• Personal data sent to us for development or testing where synthetic or masked data would do.
• Special category data under Article 9 of the UK GDPR, unless the engagement is scoped for it and a data protection impact assessment has been completed.

Part 04

Charges, invoicing and late payment

Role: supplier

Charges are those in the signed statement of work. Unless it says otherwise, work is charged on a time and materials basis, invoiced monthly in arrears, payable within 30 days of invoice date.

Expenses are recharged at cost with receipts, and only where agreed in advance in writing.

VAT

Prices exclude VAT. VAT is charged at the prevailing rate where the company is registered for VAT and the supply is within scope. If the company is not VAT registered at the time of supply, no VAT is charged and the invoice will say so rather than being silent.

Late payment

Statutory interest and compensation under the Late Payment of Commercial Debts (Interest) Act 1998 apply to a late business to business payment. We would rather chase an invoice by email than by statute, and we will always ask before we invoke it.

Part 05

Intellectual property in deliverables

Role: supplier

What passes to you

On payment in full for the relevant deliverable, we assign to you all intellectual property rights in the bespoke work produced for you under that statement of work. Bespoke means written specifically for your engagement and not reusable generic tooling.

What stays with us

We keep ownership of pre-existing material, general know how, and reusable components we brought to the engagement. You get a perpetual, irrevocable, worldwide, non-exclusive, royalty free licence to use those components to the extent they are embedded in your deliverable, including the right to sublicense that use to your own successors.

This is stated explicitly because the common alternative, silence, leaves a client owning a deliverable they cannot lawfully run.

Open source

Where a deliverable includes open source components, we identify them and their licences in the handover, and we do not knowingly introduce a copyleft component into a proprietary deliverable without telling you first.

Your material

You keep everything you owned before the engagement and everything you supply to us. We get only the licence we need to do the work you asked for, for as long as we are doing it.

Part 06

Confidentiality

Role: both

Each side keeps the other's confidential information confidential, uses it only for the engagement, and protects it at least as carefully as its own. The obligation survives the engagement by five years, and indefinitely for anything that is a trade secret.

It does not apply to information that is public through no fault of the receiver, was already lawfully known, is independently developed without reference to the disclosure, or must be disclosed by law or by a regulator. Where disclosure is compelled and we are lawfully able to tell you first, we will.

Part 07

Data protection

Role: both

Where we handle personal data for you in the course of an engagement, we act as a processor and you remain the controller. Where we handle personal data about our own contacts, correspondents and website visitors, we act as a controller. The privacy notice sets out both, marked section by section with the role that applies.

What a processing schedule will contain

• Subject matter, duration, nature and purpose of processing, and the categories of data subject and personal data, as Article 28(3) of the UK GDPR requires.
• Processing on your documented instructions only, with a duty to tell you if an instruction appears to breach data protection law.
• Confidentiality commitments from everyone with access, and Article 32 security measures.
• Sub-processor list, with prior notice and a right to object before any change.
• Assistance with data subject rights, and with your Article 32 to 36 obligations.
• Notification of a personal data breach without undue delay, so you can meet the 72 hour deadline in Article 33.
• Deletion or return at the end of the engagement, at your election.
• Information and audit rights sufficient to demonstrate compliance.

International transfers

Where an engagement would involve a transfer outside the UK, we identify it before it happens and put the International Data Transfer Agreement or the UK Addendum to the EU standard contractual clauses in place, together with a transfer risk assessment. We do not transfer first and paper it afterwards.

Questions go to [email protected].

Part 08

Liability

Role: supplier

What we never limit

Nothing in these terms limits or excludes liability for death or personal injury caused by negligence, for fraud or fraudulent misrepresentation, for breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982, or for anything else that cannot lawfully be limited.

What we do not accept

Subject to the paragraph above, neither party is liable to the other for loss of profit, loss of revenue, loss of anticipated saving, loss of goodwill, or any indirect or consequential loss, in each case however arising.

Cap

Subject to the first paragraph, each party's total liability arising out of or in connection with an engagement, whether in contract, tort including negligence, breach of statutory duty or otherwise, is limited to the total charges paid and payable under that statement of work in the twelve months before the event giving rise to the claim.

Where no charges have been paid, for example a claim arising out of this website alone, that cap is one hundred pounds sterling.

Reasonableness

These limits are agreed between businesses, reflect the price of the work, and are intended to be reasonable for the purposes of the Unfair Contract Terms Act 1977. They do not apply to a consumer, and we do not contract with consumers for engineering services.

Part 09

Insurance

Role: supplier

We hold no professional indemnity insurance at present, and we will not represent otherwise. A client that requires cover as a condition of engagement should say so before signing, because arranging it would be a precondition of the work rather than something to discover afterwards.

Stating this plainly costs us engagements. Discovering it during a claim would cost a client considerably more.

Part 10

Personnel

Role: both

We are responsible for our own people, including their tax, national insurance and status. Nothing in an engagement creates employment, partnership, joint venture or agency between us.

No hiring restriction

There is no non-solicitation clause and there will not be one. If someone who worked on your engagement would rather work for you, that is between them and you. A clause restricting an individual's next job, in a contract they never signed, is not something we are willing to rely on.

Part 11

Suspension and termination

Role: both

For convenience

Either side may terminate an engagement on 30 days written notice. You pay for work performed and for committed third party costs up to the termination date, and nothing else. There is no termination charge.

For cause

Either side may terminate immediately on written notice if the other commits a material breach that is not remedied within 20 business days of being asked, or becomes insolvent.

On termination

We hand over work in progress in a usable state, transfer or delete personal data as the processing schedule provides, and return or destroy confidential information. We do not withhold a handover over a payment dispute, because holding a client's system hostage is not a debt recovery method we are prepared to use.

Part 12

Governing law and jurisdiction

Role: both

These terms and any dispute arising out of them, including a non-contractual dispute, are governed by the law of England and Wales. The courts of England and Wales have exclusive jurisdiction.

The general limitation period for a contract claim in England and Wales is six years under the Limitation Act 1980, and twelve years for a contract executed as a deed. We do not attempt to shorten it by contract.

Before proceedings

Raise it with us in writing first and give us 20 business days. Most disputes on work of this kind are a disagreement about scope, and most of those are resolved by reading the statement of work together. This is a request rather than a condition precedent, and it does not stop you seeking urgent relief.

Part 13

General

Role: both

Changes

The version in force is the one published here with the effective date at the top. For a client under a signed engagement, that engagement governs how it may be varied, and editing this page does not vary it.

Entire agreement

A signed engagement letter, its statements of work, these terms, the privacy notice and the cookie statement are the whole agreement about their subject matter. Nothing here excludes liability for fraudulent misrepresentation.

Third parties

A person who is not a party has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of these terms.

Severance, waiver and assignment

An unenforceable provision is severed and the rest continues. A failure to enforce is not a waiver. Neither side may assign without the other's written consent, not to be unreasonably withheld, except that either may assign to a purchaser of substantially the whole of its business.

Contact and trading disclosure

VIVAN LABS LTD, registered in England and Wales, company number 17061582. Registered office: 105 St. Email [email protected].