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Terms and Conditions

Background
Momentum is in the business of providing the Services and this document together with the Contract sets out the terms and conditions upon which Momentum provides the Services to the Client.

1. Definitions
1.1. ‘Business Day’ means a day other than a Saturday, Sunday or public holiday in Northern Ireland when banks in Belfast are open for business.
1.2. ‘the Client’ means recipient of the Services from Momentum.
1.3. ‘Conditions’ means these terms and conditions as amended from time to time
1.4. ‘the Contract’ means the applicable consultancy contract entered into between Momentum and the Client from time to time incorporating these Conditions.
1.5. ‘Control’ shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.
1.6. ‘Intellectual Property Rights’ means patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including knowhow and trade secrets) 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.
1.7. ‘The Momentum Group’ or ‘Momentum’ means the group of companies comprising Momentum Business Development Ltd (NI073770), Momentum R&D Ltd (NI637241) and Momentum Corporate Strategy Ltd (NI637243).
1.8. ‘Services’ means the services provided by Momentum to the Client as set out in the Contract.

2. Performance
2.1. Momentum shall use reasonable endeavours to provide the Services in a timely fashion but any dates for performance shall be estimates only and shall not be binding on Momentum. For the avoidance of doubt time shall not be of the essence in respect of the performance of the Services.
2.2. Where the Contract specifies that Momentum’s Services will be provided by a named individual, Momentum agrees to take all reasonable steps to ensure that these persons will provide the Services for the full length of the contract, however Momentum shall have the right to change the individual providing the Services at any time and shall notify the Client in such event.
2.3. Momentum 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 Momentum shall notify the Client in any such event.
2.4. Momentum warrants to the Client that the Services will be provided using reasonable care and skill.

3. Confidentiality and Non-Use
3.1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients, suppliers, proposals, fee structures, proprietary methods, systems, or templates of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 3.2.
3.2. Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Services. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 3; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
3.3. No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.

4. Further Undertakings
4.1. To preserve the confidentiality attaching to the confidential information, the recipient shall:
(a) keep all documents and other material bearing or incorporating any confidential information separate from all other documents and materials and at its usual place of business;
(b) exercise in relation to the confidential information no lesser security measures and degree of care than those which it applies to its own confidential information; and
(c) not disclose confidential information to its employees, consultants and professional advisors except to the extent that it is essential for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Services.

5. Materials Supplied
5.1. Momentum agrees to return any materials supplied by the Client to Momentum as part of the provision of the Services upon request. However, Momentum will not be responsible for any wear or tear occasioned nor for any loss or theft that might occur. All such material is supplied at the Client's own risk and no liability for any direct or indirect loss is accepted.

6. Rights of Ownership
6.1. Each party maintains all rights in its Intellectual Property Rights and Intellectual Property Rights supplied by one party to another shall remain the exclusive property of the supplying party.
6.2. Notwithstanding any payments received from the Client, all Intellectual Property Rights arising out of or in connection with the Services shall be owned by Momentum.
6.3. Notwithstanding the provisions of clauses 6.1 and 6.2 Momentum grants the Client the right to copy any material provided by or created by Momentum arising out of or in connection with the Services provided that distribution of such copies is exclusively within the Client's particular organisation.
6.4. The right to distribute copies of Momentum’s material within the Client's organisation does not extend to multi-client and offthe-shelf market research reports which have been bought from Momentum. Additional copies of such reports for internal distribution are available, at the time of purchase or later, at greatly reduced cost.

7. Fees:
7.1. The Contract shall set out the basis on which Momentum shall be paid for the Services.
7.2. Subject to any payment terms set out in the Contract, the Client shall pay each invoice submitted by Momentum within 7 Business Days of the date of the invoice in full and in cleared funds to a bank account nominated in writing by Momentum.
7.3. If the Client fails to make any payment due to Momentum under the Contract within 7days of the due date for payment, then the Client shall pay interest on the overdue amount at the rate of 4% percent per annum above Santander’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgement. The Client shall pay the interest together with the overdue amount.
7.4. The Client 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). Momentum may at any time, without limiting its other rights or remedies, set off any amount owning to it by the Client against any amount payable by Momentum to the Client.

8. Termination
8.1. Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
a) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business; or
b) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
8.2. Without limiting its other rights or remedies, Momentum may terminate the Contract with immediate effect by giving written notice to the Client if:
a) the Client commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of the Client being notified in writing to do so;
b) the Client’s financial position deteriorates to such an extent that in Momentum’s opinion the Client’s capability to adequately fulfill its obligations under the Contract has been placed in jeopardy;
c) the Client fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment; or
d) there is a change of Control of the Client.
8.3. Without limiting its other rights or remedies, Momentum may suspend provision of the Services under the Contract or any other contract between the Client and Momentum if the Client becomes subject to any of the events listed in clause 8.1(a) and clause 8.1(b) or Momentum reasonably believes that the Client is
to pay any amount due under this Contract on the due date for payment.
8.4. Specific terms apply to termination in the event of illegal activities (Clause 13) or force majeure (Clause 14).
8.5. On termination of the Contract for any reason:
a) the Client shall immediately pay to Momentum all of Momentum’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Momentum shall submit an invoice, which shall be payable by the Client immediately on receipt;
b) 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 expiry; and
c) clauses which expressly or by implication survive termination shall continue in full force and effect.

9. Payment Terms:
9.1.  The Client agrees to be bound by the payment terms set out in the Contract and these Conditions and to the extent that there is any inconsistency between any of the provisions of the Conditions and the Contract the provisions of the Contract shall prevail as between the parties.
9.2. Should the Client fail to make any final payment without giving written notification of due cause, then Momentum shall be entitled to withhold delivery of any final reports and shall not be responsible for any inconvenience, loss or damage so caused and clause 7.3 shall also apply.
9.3. Momentum shall have the right to suspend the Services should the Client not make any interim payment as set out in the Contract and Momentum shall not be liable for any loss caused to the Client due to the suspension of Services.
9.4. The currency of payment shall be in sterling unless otherwise agreed in writing and set out in the Contract.
9.5.  Unless otherwise explicitly provided for in the Contract, no account will be taken of any exchange rate fluctuations during the life of the Contract. Each party accepts as their own responsibility the variation, whether favourable or unfavourable, that they may see in local currency terms in respect of the Contract.
9.6. The Client's responsibility for payment to Momentum is for the full amount as set out in the Contract. The Client agrees to adjust all payments to take into account any charges levied (such as may be made by the transferring bank), such that the full amount is received by Momentum. The Client accepts that Momentum shall be entitled to recover all deducted amounts.
9.7. The Client shall make all payment by via BACS. Momentum shall be entitled to recover any costs caused by any Client variations in this respect not agreed in advance.

10. Limitation of Liability
10.1. Nothing in the Contract shall limit or exclude Momentum’s liability for:
a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
b) fraud or fraudulent misrepresentation; or
c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 or any other liability which cannot be limited or excluded by applicable law.
otherwise, arising under or in connection with the Contract for loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of damage to goodwill and any indirect or consequential loss.
10.3. Subject to clause 10.1, Momentum’s total liability to the Client, whether in contract, tort, breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the value of the Contract or the value of the loss, whichever is less.
10.4. This clause 10 shall survive termination of the Contract.
10.5. Momentum shall provide the Services based on information available at the time of providing the Services and shall rely solely on information provided by the Client and Momentum shall not be liable for any loss based on inaccurate information provided by the Client.

11. Publicity:
11.1. Momentum shall have the right, without further reference to the Client, to publicise the fact that the Client is, or was, a client and to utilise the Client's name in publicity materials in this respect. Momentum may also describe in general terms the type of work conducted for the Client, but shall not be permitted to link the two without the prior permission of the Client.
11.2. Wherever the results of the Services are cited by the Client, the Client agrees to make due reference to Momentum so as to make it clear who carried out the work, except where Momentum explicitly agreed otherwise in writing. This provision is notwithstanding clause 6 above.

12. Recruitment of Personnel:
12.1. Each Party undertakes not to attempt to solicit or procure the services of staff employed by the other party who are involved in the performance of this Contract during the course of the Contract and for a period of twelve months thereafter without the written permission of the other party.

13. Illegal activities:
13.1 Momentum will not carry out any illegal activities on behalf of the Client. Momentum shall be entitled to terminate the Contract should any illegal activity become apparent and Momentum shall be entitled to recover in full its fee and expenses (where applicable).
13.2.   The Client agrees not to make any illegal use of any information provided by Momentum.

14. Force Majeure:
14.1.   Neither party shall be in breach of the Contract nor liable for any delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
14.2. Where the delay caused by third party events outside either party's control causes such delay that the purpose of the Contract is wholly or significantly destroyed, either party shall be entitled in these circumstances to terminate the Contract. In such circumstances the Client shall not be required to make further payments of fees but there will be no refund of payments already made (including any payments for that part of the Contract that remains unfulfilled) and Momentum will be entitled to recover any costs already incurred.

15. Assignment and other dealings
15.1. Momentum 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.
15.2. The Client shall not, without the prior written consent of Momentum, 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.

16. Variation
16.1. No variation of these Conditions shall be effective unless it is in writing and signed by the parties.

17. Notices
17.1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at the address set out beside their name in the Contract, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier or e-mail.
17.2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 17.1(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.
17.3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

18. Waiver:
18.1. A delay or failure to exercise any right or remedy shall not waive that or any other right or remedy or prevent or restrict the further exercise of that or any other right or remedy.

19. Severance
19.1. If any provision or part-provision of these Conditions are or become 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 any provision or part-provision under this clause shall not affect the validity of the Conditions.

20. Third Parties
20.1. No one other than a party to the Contract shall have any right to enforce any of its terms.

21. Governing Law
21.1.   The Contract and these Conditions, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of Northern Ireland.

22. Jurisdiction
22.1. Each party irrevocably agrees that the courts of Northern Ireland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.