ASM Business Enterprises Terms and Conditions

Last Updated 7th November, 2024

These terms set the rules for promoting your Services on caremarketplace.co.uk ("our Website").

BY PROVIDING THE SERVICES, YOU AGREE AND ACCEPT OUR TERMS AND CONDITIONS. YOU ALSO WARRANT THAT YOU HAVE THE AUTHORITY AND CAPACITY TO ENTER INTO THESE TERMS AND CONDITIONS AND TO CONTRACTUALLY BIND THE COMPANY.

THESE TERMS AND CONDITIONS MUST BE READ IN CONJUNCTION WITH OUR PRIVACY POLICY AND COOKIE POLICY.

1. Interpretation

The following definitions and rules of interpretation apply in this Agreement.

1.1 Definitions:

Authorised User: those employees, agents and independent contractors of the Care Provider who are authorised by ASM to access the Website for and on behalf of the Care Provider.

ASM: ASM Ltd, a company incorporated and registered in England and Wales with company registration number 15270298. Address: Flat 16, 93 Greencroft Gardens, NW6 3PG, London, United Kingdom.

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Care Services: the provision of personal care the exact details of which shall be discussed directly between the Care Seekers and Care Providers.

Care Seeker: a User that is active and/or registered on the Marketplace for the purpose of creating a requirement for care either for themselves or on behalf of someone, receiving Offers of Care Services via our Website to meet their requirement for care.

Care Provider or Business: an individual or an organisation that is registered on our Website as a provider of Care Services to send Offers to provide Care Services, including provision of Workforce, to other Care Providers or Businesses via our Website.

Fees: the fees payable by the Care Provider in accordance with clause 8 (Fees and payment) whether payable as a Success Fee or as a Monthly Fee.

Contract: the contract between the ASM and the Care Provider for the supply of Services in accordance with this Agreement.

Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring 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 know-how [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.

List: the advertisement of the Care Provider’s business on the Website (and Listing and Listed shall be interpreted accordingly).

Provider Account: the online account of the Care Provider on the Website.

1.2 Interpretation:

(a) A reference to legislation or a legislative provision:

(a) is a reference to it as amended, extended or re-enacted from time to time; and

(b) shall include all subordinate legislation made from time to time under that legislation or legislative provision.

(b) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. Creating an Account

2.1 The Care Provider must create a Provider (Business) Account on the Website.

2.2 The persons creating the Provider Account on behalf of the Care Provider warrants that it is authorised to:

(a) create a Provider Account on behalf of the Care Provider;

(b) bind the Care Provider to these Terms and Conditions; and

(c) does not know or any reason why (or ought to know of any reason why) it cannot create a Provider Account or supply the Services.

2.3 Before the Provider Account shall become active, the Care Provider must follow the steps provided in the activation email sent to the authorised company email address used to register the Care Provider Account.

2.4 By creating a Provider Account, the Care Provider warrants that:

(a) it is not a consumer as defined under the Consumer Rights Act 2015;

(b) it shall use the Website for itself and not for or on behalf of a third party;

(d) each Authorised User shall keep a secure password for their use of the Services and not share such passwords or access to the Website with any third party.

2.5 The Client may allow for an unlimited number of Authorised Users to be associated to each Client Account, subject to and on the terms of this agreement.

3. Supply of Services

3.1 In consideration for the Fees, ASM shall make its platform available to the Care Provider, subject to and on the terms and conditions of this Agreement.

3.2 This Agreement applies to the exclusion of any other terms that the Care Provider seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

3.3 The Care Provider shall meet any performance dates for the Services that ASM notifies to the Care Provider and time is of the essence in relation to any of those performance dates.

3.4 The Care Provider warrants to ASM that it shall:

(a) enter into a direct contract with any Care Seeker that it engages via the Website;

(b) that ASM shall have no direct or indirect contractual or other relationship or liability for the provision of Care Services between the Care Seeker or Care Provider and that such relationship and liability is between the Care Provider and the Care Seeker only;

(c) use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Care Provider’s obligations are fulfilled in accordance with the Contract;

(d) provide all equipment, tools and vehicles and such other items as are required to provide the Care Services;

(e) obtain and at all times maintain all licences and consents which may be required to be Listed on the Website;

(f) comply with all applicable laws, regulations and codes at all times;

(g) provide ASM with true, complete and accurate information at all times about its company, personnel, Care Services, location and any other information required by ASM in order to List the Care Provider on its website;

(h) immediately notify ASM in writing of any changes to the information noted in clause 2.4(g) above;

(i) not do or omit to do anything which may cause ASM to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business, and the Care Provider acknowledges that ASM may rely or act on the Services; and

(j) comply with any additional obligations as notified to it by ASM from time to time.

3.5 ASM makes no warranty that its Website shall remain uninterrupted or available at all times nor does it make any warranty that its Website is free of any viruses, adware, malware, bit torrents, or other items or errors which may have an adverse effect on any of the Website and/or their operation.

3.6 The Website shall allow the Care Seekers to advertise its care requirements on the Website including, without limitation, the type of care required, the location for the provision of the Care Services and any medical history or requirements (‘Care Seeker’s Requirements’).

3.7 Upon receipt of the Care Seeker’s Requirements, ASM shall may all Care Providers. ASM shall not be obliged to preferentially List any particular Care Provider but may do so if it wishes at its sole and absolute discretion.

3.8 The Care Provider may respond to the Care Seeker’s Requirement via the Website should the Care Provider believe it to possess the necessary skill set to meet the Care Seeker’s Requirements.

3.9 The Care Provider is solely responsible and liable for ensuring that it is suitable to meet the Care Seeker’s Requirements. ASM shall have no liability whatsoever for any incompatibility or unsuitability between the Care Provider and the Care Seeker or the Care Seeker’s Requirements.

3.10 The Care Provider warrants that by responding to the Care Seeker’s Requirements it is able, by law and otherwise, to provide the Care Services.

3.11 The Care Provider shall be responsible for providing the Care Seeker with a quotation for the Care Services required and for any negotiation pertaining to such quotation.

3.12 Upon issuing the quotation, the Care Provider’s profile (as uploaded on the Provider Account) shall be sent to the Care Seeker.

3.13 The Care Provider may only advertise its own business and not for or behalf of any third party.

3.14 By signing this Agreement, the Care Provider agrees and acknowledges that ASM is not an employment agency and ASM is not procuring employees or customers for the Care Provider. The Care Provider understands and acknowledges that the Website merely allows Care Providers and Care Seekers to connect and exchange information.

3.15 The Care Provider warrants that no form of volume guarantee has been or is granted by ASM in relation to the provision of the Services by the Care Provider.

3.16 ASM shall have no liability or responsibility to the Care Provider for ensuring the suitability of the Care Seeker to whom the Care Provider is listed on the Website. The Care Provider is fully responsible and liable for ensuring that it is able to meet the requirements of the Care Seeker.

3.17 During the course of the Services, the Care Seeker shall provide ASM with details as to its care requirements. The Care Provider accepts and acknowledges that ASM is reliant upon the information provided to it by the Care Seeker and that it is not responsible or liable for verifying or otherwise authenticating the truth, completeness or accuracy of the Care Seeker’s information as provided to ASM.

3.18 The Care Provider shall respond to all engagement requests within one Business Day of receipt on the Website.

4. Care Provider’s Warranties

4.1 The Care Seeker acknowledges and accepts that ASM makes no guarantee whatsoever (and shall have no liability) for:

(a) ensuring that the Care Seeker’s Listing reach the desired target audience;

(b) ensuring that the Care Seeker shall engage the Care Provider to provide any care services; or

(c) that the Care Provider is suitable to meet the Care Seeker’s requirements (it is the obligation of the Care Provider to ensure that it is able to meet the Care Seeker’s care requirements).

4.2 ASM shall only be entitled to collate initial details to estimate the type of Care Providers suitable for the Care Seeker.

4.3 The Care Seeker further acknowledges and agrees that ASM is not a care provider nor provides any healthcare or medical advice. Accordingly, ASM shall only provides no guarantee whatsoever that it has collected sufficient or complete information from the Care Seeker. The Care Provider is, therefore, responsible for conducting its own due diligence with the Care Seeker.

4.4 ASM shall base its price comparison Services, and thus list the Care Provider’s business based on the various information inputted by the Care Seeker about the care services it require. The range of services and Care Providers displayed to the Care Seeker shall be based on the responses provided by it.

4.5 To the fullest extent permitted by law, ASM and its licensors expressly exclude any representations, conditions, warranties and other terms which are implied by statute, common law or otherwise. Any statements to the contrary are void.

4.6 ASM merely acts as an introducer between Care Seekers and Care Providers. For the avoidance of any doubt, ASM is not a broker.

4.7 ASM is not affiliated or otherwise connected to the Care Providers. ASM is not an employer of the Care Provider nor their agents, nor does it guarantee to introduce a Care Seeker to a Care Provider and the Care Provider will not hold or allow ASM to be held out as such.

4.8 The Care Provider is entirely responsible and liable for ensuring it enters into a contract with the Care Seeker directly. The Care Provider acknowledges that ASM shall not be party to or have any contractual or other liability for the provision of care services between the Care Provider and the Care Seeker.

4.9 The Care Seekers may interact directly with the Care Providers who respond to their listing on the Website. ASM shall only facilitate the initial introduction and bidding process between the parties. However, ASM does not facilitate and is not responsible for any agreements or contracts formed between Care Providers and the Care Seekers.

4.10 The Care Provider shall be solely responsible for responding to, handling and remedying any complaint, grievance or claim that a Care Seeker may have.

4.11 The Care Provider warrants that any final quotation provided by it to the Care Seeker is honoured by the Care Provider provided it has been accepted by the Care Seeker before any quotation expiry date or 180 days from the date it is submitted to the Care Seeker – whichever is sooner.

5. Care Provider Restrictions

5.1 In order to protect the legitimate business interests of ASM, the Care Provider covenants with ASM that it shall not at any time after termination or expiry of this Agreement, say anything which may be harmful to the reputation of [the business of ASM, whether defamatory or otherwise.

5.2 The Care Provider undertakes that, other than in concert with ASM or with ASM’s express prior written approval, it shall not, directly or indirectly:

(a) itself contact or pursue the Care Seeker outside of the Website;

(b) agree to reduce its pricing or offer any other incentives for any Care Services or other by engaging the Care Seeker unless such reduction in pricing is recorded and accepted via the Website;

(d) seek, encourage or respond to any approach from any third party to pursue the Care Seeker outside of the Website.

6. The Listing

6.1 In order to List its business on the Website, the Care Provider must provide ASM with:

(a) the Care Provider’s full corporate name, address and registered number, or (if it is not incorporated) its full business and trading name and address, and the nature of its business the named contact of the Client (‘Client’s Personnel);

(b) the nature of the services the Care Provider may provide, its location and its pricing;

(c) the experience, training, qualifications and any authorisations possessed by the Care Provider and its personnel, including any qualifications or authorisations required by law or any applicable professional body; and

(d) any other information requested by ASM from time to time.

6.2 The Care Provider warrants that it possess the necessary authorisations, licenses, permits and regulatory permissions to provide the care services. The Care Provider further warrants that all staff and personnel possess valid DBS and criminal record checks and other security checks and are appropriately trained. ASM is not responsible for monitoring such compliance at any time.

6.3 Should the Care Provider be unable, prevented or precluded from providing Care Services including, without limitation, where it has lost any permissions or consents listed in clause 6.2 or where the Care Provider no longer provides any part of its care services, it shall notify ASM immediately. Time shall be of the essence of the contract.

6.4 The Care Provider accepts and acknowledges that it remains responsible and liable for ensuring that the information it provides on the Website including to Care Seeker’s directly and via the Provider’s Account is complete, true and accurate. ASM shall have no responsibility or liability whatsoever for checking the validity or accuracy of any information the Care Provider provides when creating a Provider Account, sending to the Care Seeker or otherwise. However, ASM reserves its rights entirely to refuse to List or remove from Listing any Care Provider on its Website at any time where it believes, in our sole and absolute discretion, that any information provided by the Care Provider is incomplete, inaccurate or misleading.

7. Acceptable Usage of Website

7.1 The Website will include information and materials uploaded by other users, being Care Seekers and Care Providers. This information and these materials have not been verified or approved by ASM. The views expressed by other users on our site do not represent ASM’s views or values.

7.2 ASM makes no representations, warranties or guarantees, whether express or implied, that the content on the Website is accurate, complete or up to date.

7.3 ASM does not guarantee that the Website will be secure or free from bugs or viruses.

7.4 Care Providers are responsible for configuring its information technology, computer programs and platform to access the Website. Care Providers should use its own virus protection software.

7.5 The Care Provider must not misuse the Website by knowingly introducing viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful, or otherwise harmfully interacting with the Website or any part of it. The Care Provider must not attempt to gain unauthorised access to the Website, the server on which the Website is stored or any server, computer or database connected to the Website or any other equipment or network connected with the Website. The Care Provider must not interfere with, damage or disrupt any software used in the provision of the Website or any equipment or network or software owned or used by any third party on which this site relies in any way. The Care Provider must not attack the Website via a denial-of-service attack or a distributed denial-of-service attack. By breaching this provision, the Care Provider would commit a criminal offence under the Computer Misuse Act 1990. ASM will report any such breach to the relevant law enforcement authorities and ASM will co-operate with those authorities by disclosing the Care Provider’s identity to them. In the event of such a breach, the Care Provider right to use the Website will cease immediately.

7.6 The Care Provider warrants that it shall not use the Website:

(a) in any way that breaches any local, national or international law or regulation;

(b) in any way that is unlawful or fraudulent or has any unlawful or fraudulent purpose or effect;

(d) to send, knowingly receive, upload, download, share, post, use or re-use any material which is not true, complete or accurate;

(e) to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam); or

(f) to knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.

7.7 The Care Provider warrants, in respect of any content uploaded to the Website, that it:

(a) is accurate (where it states facts);

(b) only contain opinions that are in line with its regulatory obligations;

(d) is not defamatory of any person;

(e) is not obscene, offensive, hateful or inflammatory;

(f) does not infringe any copyright, database right or trade mark of any other person;

(g) will not be likely to deceive any person;

(h) will not breach any legal duty owed to a third party, such as a contractual duty or a duty of confidence;

(i) will not contain illegal content or promote any illegal content or activity;

(j) will not be in contempt of court;

(k) must not be threatening, abuse or invade another's privacy, or cause annoyance, inconvenience or needless anxiety;

(l) must not be likely to harass, upset, embarrass, alarm or annoy any other person;

(m) must not impersonate any person or misrepresent your identity or affiliation with any person;

(n) must not give the impression that the User Content emanates from ASM, if this is not the case;

(o) must not advocate, promote, incite any party to commit, or assist any unlawful or criminal act such as (by way of example only) copyright infringement or computer misuse;

(p) must not contain a statement which you know or believe, or have reasonable grounds for believing, that members of the public to whom the statement is, or is to be, published are likely to understand as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism; and

(q) must not be pornographic.

8. Charges and payment

8.1 The Fees shall be by payable by the Care Provider on:

(a) a subscription basis; or

(b) a success fee basis; or

8.2 Where the Fees are paid on a subscription basis:

(a) the initial term or subsequent renewal term shall each consist of a fixed period of 12 months:

(b) ASM shall invoice the Care Provider one (1) month in advance for the Fees on a monthly basis (the ‘Monthly Fees’);

(c) the Care Provider shall pay to ASM the Monthly Fee and any other charges which fall due under this Agreement within 7 days of receipt of ASM’s invoice;

(d) the Monthly Fee and any other charges are exclusive of value added tax (VAT) and any other sales tax or duty which, if applicable, shall be paid additionally by the Care Provider at the then prevailing rate;

(e) the Care Provider must notify ASM in writing within 5 Business Days of receipt of an invoice if the Client considers such invoice incorrect or invalid for any reason and the reasons for withholding payment failing which the Client will raise no objection to any such invoice and will make full payment in accordance with it; and

(f) ASM shall take payment in advance monthly via Direct Debit. The monthly fees must be paid by the Care Provider by Direct Debit on the last working day of each month until the Care Provider wishes to exercise their rights under the Direct Debit Scheme Guarantee to cancel and stop these direct debit payments. This clause constitutes advance notice of payments to be collected by Direct Debit and confirmation of the Direct Debit Scheme Guarantee (as set out in the Direct Debit Instruction Form). The Care Provider’s rights to cancel Direct Debit payments shall not affect our rights and remedies to recover funds from you that are owed to us pursuant to the terms of this Agreement. This document should be retained for future reference.

8.3 Where the Fees are paid on a success fee basis the Care Provider:

(a) shall pay ASM the Fees upon successful engagement of the Care Seeker. A successful engagement shall amount to the acceptance by the Care Seeker of the Care Provider’s quote (‘Success Fee’);

(b) shall provide to ASM valid, up-to-date and complete credit card details and other relevant valid, up-to-date and complete contact and billing details upon creation of the Provider’s Account;

(c) upon a successful engagement of the Care Seeker, the Website shall automatically generate an invoice which shall be issued to the Care Provider at the email address registered at its Provider Account at ASM’s Success Fee rate in force from time to time;

(d) ASM’s invoice shall be payable within 7 days of the date of the invoice; and the Care Provider hereby authorises ASM to bill such credit card for the Success Fees in accordance with clause 8.3(d).

(e) the Success Fee and any other charges are exclusive of value added tax (VAT) and any other sales tax or duty which, if applicable, shall be paid additionally by the Care Provider at the then prevailing rate.

8.4 Should the Care Provider cancel the Direct Debit or if the Care Provider does not make any payment by the date provided for in this Agreement by the date it is due, ASM will be entitled to:

(a) charge interest on the outstanding amount at the rate of 8% a year above the base rate of the National Westminster Bank Plc, accruing daily;

(b) revoke the Care Provider’s access to the Platform;

(b) the Care Provider shall indemnify ASM for all legal costs and expenses it incurs in seeking to collect such overdue invoices from the Client.

8.5 If ASM has bonafide doubts as to the solvency of the Care Provider, or if the Care Provider fails to pay undisputed invoices in accordance with the terms of this Agreement, all sums payable to ASM by the Care Provider under this Agreement or otherwise shall become due and payable immediately without ASM being required to provide any further notice to the Care Provider.

8.6 In consideration of the supply of the Services by ASM, the Care Provider shall pay the invoiced amounts within 7 days of the date of a correctly rendered invoice to a bank account nominated in writing by ASM.

9. Intellectual property rights

9.1 All Intellectual Property Rights in or arising out of or in connection with the Website and the Services (other than Intellectual Property Rights in any Care Provider Materials) shall be exclusively owned by ASM.

9.2 ASM grants to the Care Provider, or shall procure the direct grant to the Care Provider, a licence during the term of the Contract to access and use the Website for the purpose of receiving and delivering the Services.

10. Indemnity

10.1 The Care Provider shall indemnify ASM against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by ASM arising out of or in connection with:

(a) any breach of clauses 3,4,5,6 and/or 7;

(b) any claim brought against ASM for actual or alleged infringement of a third party's intellectual property rights arising out of, or in connection with, the receipt, use or supply of the Care Services; and

(c) any claim made against the ASM by a third party including, without limitation, the Care Seeker, arising out of, or in connection with, the supply of the Care Services.

10.2 This clause 10 shall survive termination of the Contract.

11. Data protection

11.1 The Parties acknowledge that for the purposes of the Data Protection Legislation, ASM is the Controller and the Care Provider is the Processor.

11.2 The Processor shall provide all reasonable assistance to the Controller in the preparation of any Data Protection Impact Assessment prior to commencing any processing. Such assistance may, at the discretion of the Controller, include:

(a) a systematic description of the envisaged processing operations and the purpose of the processing;

(b) an assessment of the necessity and proportionality of the processing operations in relation to the delivery of the Services;

(d) the measures envisaged to address the risks, including safeguards, security measures and mechanisms to ensure the protection of Personal Data.

11.3 The Processor shall, in relation to any Personal Data processed in connection with its obligations under this Agreement:

(a) process that Personal Data only in accordance with the Controller’s instructions unless the Processor is required to do otherwise by Law. If it is so required to process the Personal Data otherwise by Law, the Processor shall promptly notify the Controller before processing the Personal Data unless prohibited by law; and

(b) ensure that it has in place appropriate technical and organisational measures, which are appropriate to protect against a data loss event;

(c) not transfer Personal Data outside of the EU unless the prior written consent of the data subject has been obtained and the following conditions are fulfilled; and

(d) at the written direction of the Controller, delete or return Personal Data (and any copies of it) to the Controller on termination of the Agreement unless the Processor is required by law to retain the Personal Data.

11.4 The Processor shall notify the Controller immediately if it:

11.5 receives a Data Subject Request (or purported Data Subject Request);

11.6 receives a request to rectify, block or erase any Personal Data;

11.7 receives any other request, complaint or communication relating to either Party's obligations under the Data Protection Legislation;

11.8 receives any communication from the Information Commissioner's Office or any other regulatory authority in connection with Personal Data processed under this Agreement;

11.9 receives a request from any third party for disclosure of Personal Data where compliance with such request is required or purported to be required by Law; or

11.10 becomes aware of a data loss event.

11.11 The Processor shall ensure that:

(a) the Processor’s personnel do not process the Personal Data except in accordance with this Agreement; and

(b) it takes all reasonable steps to ensure the reliability and integrity of any of Processor personnel who have access to the Personal Data including, without limitation, ensuring that the personnel are informed of the confidential nature of the Personal Data and do not publish, disclose or divulge any of the Personal Data to any third party unless directed in writing to do so by the Controller or as otherwise permitted by this Contract.

11.12 In the event that the Processor itself obtains further information from the Care Seeker then it shall itself become a data controller and must ensure its compliance with the Data Protection Legislation as a data controller.

12. Insurance

During the term of the Contract and for a period of six years thereafter, the Care Provider shall maintain in force, with a reputable insurance company, professional indemnity insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract and shall, on ASM’s request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance.

13. Termination

13.1 Without limiting or affecting any other right or remedy available to it, ASM may terminate the Contract:

(a) with immediate effect by giving written notice to the Care Provider if:

(a) there is a change of control of the Care Provider; or

(b) the Care Provider’s financial position deteriorates to such an extent that in ASM’s opinion the Care Provider’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or

(b) for convenience by giving the Care Provider five days’ written notice.

13.2 Without limiting or affecting any other right or remedy available to it, ASM may terminate the Contract with immediate effect by giving written notice to the Care Provider if:

(a) the Care Provider commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of two days after being notified in writing to do so;

(b) the Care Provider 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), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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;

(d) the Care Provider, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

14. Consequences of termination

14.1 Termination of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination , including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

14.2 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

15. Limitation of Liability

15.1 This clause 15 is without prejudice to any other clause in this Agreement which is intended to limit the liability of ASM.

15.2 Nothing in this agreement limits or excludes ASM’s liability for

(a) death or personal injury caused by its negligence; or

(b) fraud or fraudulent misrepresentation.

15.3 Subject to clause 15.2, ASM shall not be liable to the Care Provider, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:

(a) loss of profits;

(b) loss of sales or business;

(d) loss of anticipated savings;

(e) loss of or damage to goodwill;

(f) loss of use or corruption of software, data or information;

(g) loss of production; and/or

(h) any indirect or consequential loss, whatsoever, whether sustained by the Care Provider or any other person and even if foreseeable or if the ASM has been advised of their possibility.

15.4 Subject to clause 15.2 and clause 15.3, the Supplier's total liability to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited in respect of all claims (connected or unconnected) in any consecutive 12 (twelve) month period, the equivalent sum of 50% of the total charges paid by the Care Provider in that period.

15.5 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 this agreement.

16. General

16.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for three months, the party not affected may terminate the Contract by giving seven days' written notice to the affected party.

16.2 Assignment and other dealings.

(a) ASM may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

(b) The Care Provider shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of ASM.

16.3 Confidentiality.

(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 16.3(b).

(b) Each party may disclose the other party's confidential information:

(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 16.3; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c) Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.

16.4 Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

16.5 Variation. Except as set out in this Agreement, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the parties or their authorised representatives.

16.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

16.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity or enforceability of the rest of the Contract. If any provision or part-provision of this Contract is deemed deleted under this clause 16.7 , the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provisions.

16.8 Notices.

(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the email address notified by each party to the other from time to time.

(b) A notice or other communication shall be deemed to have been received: if delivered by hand, at the time the notice is left at the proper address; 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 sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 16.8(b), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

(c) This clause 16.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

16.9 Third party rights.

(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

16.10 Governing law. The Contract, 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 England and Wales.

16.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales 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.

ASM Business Enterprises Terms and Conditions

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