Volpa Ltd Conditions

These are the Conditions referred to in the attached Statement of Work between Volpa and the Customer. These Conditions, together with the Statement of Work, form the Contract.

Agreed Terms

  1. Interpretation
    • Definitions. In these Conditions, the following definitions apply:

Bespoke IP: any and all Intellectual Property Rights developed by Volpa as part of the Deliverables or as a result of performance of the Services.

Commencement Date: the commencement date specified in the Statement of Work.

Completion Date: the estimated date specified in the Statement of Work by which Volpa is to complete the Deliverables.

Conditions: these Conditions.

Confidential Information: information of commercial value, in whatever form or medium, disclosed by a party to the other party, including commercial or technical know-how, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing and marketing.

Contract: the Conditions and the Statement of Work, which together form the legally binding contract between Volpa and the Customer.

Customer: the customer specified in the Statement of Work.

Customer Materials: any and all Intellectual Property Rights or other materials (including but not limited to website content, images etc.) which is provided to Volpa by the Customer for incorporation into the Deliverables or to allow Volpa to perform the Services.

Data Protection Legislation: the Data Protection Act 2018, the GDPR, the Privacy and Electronic Communications (EC Directive) Regulations 2003, and all other applicable laws relating to the processing of personal data, privacy, the protection of personal data in electronic communications, and direct marketing, including any applicable law or regulation which supersedes, replaces or implements in the United Kingdom any of the foregoing.

Defect: an error in the Deliverables that causes them to fail to operate substantially in accordance with the Statement of Work.

Deliverables: the deliverables as detailed in the Statement of Work comprising of the Bespoke IP and the Volpa Materials.

Fees: the fees payable to Volpa by the Customer for the Deliverables and the Services as set out in the Statement of Work.

GDPR: General Data Protection Regulation ((EU) 2016/679)

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related 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, 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, including the right to sue for and recover damages for past infringements.

Services: the services to be provided by Volpa to the Customer under the Contract in addition to the Deliverables and as set out in the Statement of Work.

Statement of Work: the statement of work agreed in writing between the parties and detailing the Services and Deliverables to be provided by Volpa.

VAT: value added tax chargeable under the Value Added Tax Act 1994 and any similar additional tax or any other similar turnover, sales or purchase tax or duty levied in any other jurisdiction.

Volpa: Volpa Limited, a company incorporated in Scotland under Company Number SC254058 having its registered office at Rhum Suite, King James VI Business Centre, Friarton Road, Perth, Scotland, PH2 8DY.

Volpa Materials: all Intellectual Property Rights and any other materials incorporated into the Deliverables by Volpa or used by Volpa in the performance of the Services, excluding any Customer Materials.

  • Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
  • Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
  • Except where a contrary intention appears, a reference to a clause or annex is a reference to a clause of, or Statement of Work or annex to, these Conditions.
  • Clause headings do not affect the interpretation of these Conditions.
  • The Statement of Work to these Conditions, together with any documents referred to in them, form an integral part of these Conditions and any reference to these Conditions means these Conditions together with the Statement of Work and all documents referred to in them, and such amendments in writing as may subsequently be agreed between the Parties.
  • A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
  1. Scope
    • Volpa shall supply the Deliverables to the Customer in accordance with these Conditions and the Statement of Work and in consideration of payment of the Fees by the Customer. The Contract shall commence on the Commencement Date.
    • The Customer acknowledges that the Contract is a contract for services and any Deliverables provided by Volpa to the Customer form part of the Services.
  2. Volpa Materials
    • Where Volpa Materials are licensed by a third party, Volpa shall provide the Volpa Materials to the Customer under the standard licence terms provided by the relevant third party, a copy of which shall be provided to the Customer on request, and the Customer agrees to be bound to the relevant third parties by such licence terms.
    • Where Volpa Materials are licensed to the Customer by Volpa, Volpa grants the Customer a non-exclusive, revocable, non-transferable, royalty-free licence to use Volpa Materials to the extent needed to make full use of the Deliverables and Services.
  3. Obligations of the Parties
    • Each party shall perform their obligations under these Conditions in accordance with the Statement of Work and these Conditions.
    • The Customer shall provide Volpa with such documents, information and other assistance as Volpa may reasonably require to allow it to provide the Deliverables and perform the Services.
  4. Payment
    • In consideration of the performance of the Services and the provision of the Deliverables by Volpa, the Customer shall pay to Volpa the Fees as set out in the Statement of Work.
    • The Fees are exclusive of Value Added Tax (“VAT”) or any similar taxes. All such taxes are payable by the Customer.
    • Volpa reserves the right to charge the Customer interest for late payment of any sum due under these terms at the rate of four per cent (4%) per annum above the base rate of Royal Bank of Scotland plc calculated on a daily basis from the date payment was due until the date payment is made.
    • The Customer shall not be entitled to withhold any payment or set off any sum owed by you to Volpa.
    • In the event of non-payment, Volpa shall have the right to suspend the Customer’s access to and/or use of the Services and Deliverables or any portion thereof or to terminate the Contract in accordance with Clause 15.1.1.
    • Volpa shall have the right to increase the Fees no more than once in any contract year on giving advance notice to the Customer. If the Customer does not consent to such an increase in Fees, the Customer may terminate the Contract in accordance with clause 15.4.
  5. Ownership of Intellectual Property Rights
    • The Intellectual Property Rights in the Volpa Materials are, and shall remain, the property of Volpa or the appropriate third party rights-owner, and the Customer acquires no rights in or to the Volpa Materials other than those expressly granted by these Conditions.
    • The Intellectual Property Rights in the Customer Materials are, and shall remain, the property of the Customer and the Customer hereby grants to Volpa a non-exclusive, royalty-free licence to use the Customer Materials for the purposes of providing the Deliverables and performing the Services. The Customer shall be responsible for the accuracy and completeness of the Customer Materials and the Customer shall indemnify Volpa against all damages, losses and expenses arising as a result of any action of claim that the Customer Materials breach applicable laws, infringe any third party Intellectual Property Rights, or are obscene, indecent, pornographic, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing or blasphemous.
    • The Customer shall use reasonable endeavours to prevent any infringement of the Intellectual Property Rights in the Volpa Materials and shall promptly report to Volpa any such infringement that comes to its attention.
    • The Intellectual Property Rights in the Bespoke IP shall be owned by and vest absolutely in, Volpa. In consideration for payment of the Fees by the Customer to Volpa, Volpa hereby grants to the Customer a non-exclusive, revocable, non-transferable, worldwide licence to use the Intellectual Property Rights in the Bespoke IP and any Volpa Materials for the duration of the contract and to the extent necessary to allow the Customer to make use of the Deliverables and the Services.
  6. Hosting
    • The Customer acknowledges that Volpa subcontracts the hosting aspects of the Services to a third party provider, Fancy Chap, Inc. d/b/a Flywheel (“Flywheel”). Flywheel operates servers in the UK and will host the services on these servers.
    • In accordance with Flywheel’s terms and conditions, websites shall be accessible to third parties via the internet twenty four hours a day, seven days a week, except for scheduled maintenance and required repairs, except for any loss or interruption due to causes beyond the control of Flywheel or which are not reasonably foreseeable by Flywheel including but not limited to, interruption or failure of telecommunication or digital transmission links and internet slow-downs or failures.
    • The Customer hereby agrees to comply with Flywheel’s Acceptable Use Policy, found here
  7. Support
    • Volpa shall provide support and maintenance services in respect of the Services and Deliverables for the duration of the Contract and as detailed in the Statement of Work.
  8. Confidentiality and Publicity
    • Each party undertakes not to use the Confidential Information otherwise than in the exercise and performance of its rights and obligations under these Conditions (the “Permitted Purposes”).
    • When one party discloses (the “Disclosing Party”) Confidential Information to the other party (the “Receiving Party”) then the Receiving Party shall treat as confidential all Confidential Information of the Disclosing Party under these Conditions. The Receiving Party shall not divulge any such Confidential Information to any person, except to its own employees and then only to those employees who need to know it for the Permitted Purposes. The Receiving Party shall ensure that its employees are aware of, and comply with, this clause
    • The restrictions imposed by clause 1 and clause 9.2 shall not apply to the disclosure of any Confidential Information which:
      • is now in or hereafter comes into the public domain otherwise than as a result of a breach of this clause 9;
      • before any negotiations or discussions leading to this Conditions was already known by the Receiving Party and was obtained or acquired in circumstances under which the receiving Party was not bound by any form of confidentiality obligation; or
      • is required by law or regulation to be disclosed to any person who is authorised by law or regulation to receive the same (after consultation, if practicable, with the Disclosing Party to limit disclosure to such authorised person to the extent necessary).
    • Each party shall notify the other party if it becomes aware of any unauthorised disclosure of any Confidential Information and shall afford reasonable assistance to the other party, at that other party’s reasonable cost, in connection with any enforcement proceedings which that other party may elect to bring against any person.
    • This clause 9 shall remain in full force and effect, notwithstanding any termination of the Contract.
  9. Warranties
    • Volpa warrants and represents that:
      • the Bespoke IP is proprietary to Volpa and therefore has the right to issue a non-exclusive licence to the Customer as the owner of the Bespoke IP;
      • the Deliverables at the Acceptance Date, and for 90 days after that date, will perform in accordance with the Statement of Work; and
    • The sole remedy for breach of the warranty under clause 1.2 shall be correction of Defects by Volpa within a reasonable time from notification by the Customer of the Defect that constitutes such breach.
    • The warranties set out in clause 1 are in lieu of all other express or implied warranties or conditions, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose, in relation to these Conditions. Without limitation, Volpa specifically denies any implied or express representation that the Deliverables will be fit:
      • to operate in conjunction with any hardware items or software products other than with those that are identified as being compatible with the Deliverables; or
      • to operate uninterrupted or error-free.
    • Volpa does not warrant or guarantee that it will be able to rectify all Defects.
    • Any unauthorised modifications, use or improper installation of the Deliverables by, or on behalf of, the Customer shall render all Volpa’s warranties and obligations under these Conditions null and void.
    • Volpa shall not be obliged to rectify any particular Defect if attempts to rectify such Defect other than normal recovery or diagnostic procedures have been made by the Customer’s personnel or third parties without the permission of Volpa.
    • Each party warrants that it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform these Conditions and that those signing these Conditions are duly authorised to bind the party for whom they sign.
  10. Data Protection and Data Processing
    • Both parties will comply with all applicable requirements of the Data Protection Legislation. These Conditions are in addition to, and does not relieve, remove or replace either party’s obligations under the Data Protection Legislation.
    • Both parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Data Controller and Volpa is the Data Processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation.
    • The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to Volpa for the duration and purposes of these Conditions.
    • Volpa shall, in relation to any Personal Data processed in connection with the performance by Volpa of its obligations under these Conditions:

(a) process that Personal Data only on the written instructions of the Customer unless Volpa is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (Applicable Data Processing Laws). Where Volpa is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, Volpa shall promptly notify the Customer of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit Volpa from so notifying the Customer;

(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and

(d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:

  • the Customer or Volpa has provided appropriate safeguards in relation to the transfer;
  • the data subject has enforceable rights and effective legal remedies;
  • Volpa complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
  • Volpa complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
  • assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
  • notify the Customer without undue delay on becoming aware of a Personal Data breach;
  • at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Data Processing Law to store the Personal Data; and
  • maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by the Customer or the Customer’s designated auditor.
    • With the exception of Flywheel, Volpa shall not appoint any third party processor of Personal Data under these Conditions without the prior written consent of the Customer. Volpa has entered into a data processing agreement with Flywheel to govern the processing of personal data by Flywheel in relation to hosting services supplied under these Conditions.
    • The Customer shall identify Volpa and Flywheel as data processors on its website or in its privacy policy.
  1. Limitation of Liability
    • Neither party excludes or limits liability to the other party for:
      • fraud or fraudulent misrepresentation;
      • death or personal injury caused by negligence; or
      • any matter for which it would be unlawful for the parties to exclude liability.
    • Subject to clause 1, Volpa shall not in any circumstances be liable whether in contract, delict (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
      • any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
      • any loss or corruption (whether direct or indirect) of data or information;
      • loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
      • any loss or liability (whether direct or indirect) under or in relation to any other contract.
    • Subject to clause 1, Volpa’s total aggregate liability in contract, delict (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of these Conditions or any collateral contract shall be limited to the total Fees paid by the Customer to Volpa under the Contract.
    • Volpa shall use reasonable endeavours to meet the delivery dates detailed in the Statement of Work. Volpa shall not be liable for any delay in delivery of the Deliverables or performance of the Services that is caused by an event, circumstance or cause within the scope of clause 22 or caused by any failure of the Customer.
  2. Assignation and Subcontracting
    • The Contract is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any or all of its rights and obligations under these Conditions without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
  3. Duration
    • The Contract shall commence on the Commencement Date and shall continue until terminated by either party in accordance with clause 15.
  4. Termination
    • Without prejudice to any rights that have accrued under these Conditions or any of its rights or remedies, either party may at any time terminate the Contract with immediate effect by giving written notice to the other party if:
      • the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
      • the other party commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
      • the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
      • the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
      • an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party;
      • any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 1.4 and 15.1.5; or
      • the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
    • Either party may terminate the Contract on giving 90 days’ written notice to the other party and such notice may be given at any time following the first anniversary of the Commencement Date.
    • Either party may terminate these Conditions in accordance with clause 22.
    • The Customer may terminate these Conditions in the event that the Customer does not consent to any increase in Fees proposed by Volpa under clause 5.6.
    • Other than as set out in these Conditions, neither party shall have any further obligation to the other under these Conditions after its termination.
    • Any provision of these Conditions which expressly or by implication is intended to come into or continue in force on or after termination of these Conditions, including clause 1, clause 1, clause 7 to clause 11, and clause 15 shall remain in full force and effect.
    • Termination of these Conditions shall not affect any 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 Conditions which existed at or before the date of termination.
    • Notwithstanding its obligations in this clause 15, if a party is required by any law, regulation, or government or regulatory body to retain any documents or materials containing the other party’s Confidential Information, it shall notify the other party in writing of such retention, giving details of the documents and/or materials that it must retain.
    • On termination of these Conditions for any reason, each party shall as soon as reasonably practicable:
      • return, destroy or permanently erase (as directed in writing by the other party) any documents, handbooks, CD-ROMs or DVDs or other information or data provided to it by the other party containing, reflecting, incorporating or based on Confidential Information belonging to the other party; and
      • permanently delete any proprietary software belonging to the other party and not the subject of a current licence granted by the other party from its IT network and hard disks or other storage means associated with any computer equipment owned or controlled by the other party.
    • On termination of these Conditions for any reason, the Customer shall immediately pay any outstanding invoices and interest due to Volpa. Volpa shall submit invoices for any work undertaken, but for which no invoice has been submitted, and the Customer shall pay these invoices immediately on receipt.
    • On termination of these Conditions for any reason, any non-exclusive licences granted by Volpa to the Customer to use any Volpa Materials or Bespoke IP shall be automatically terminated. Any domain names registered by Volpa on behalf of the Customer shall be transferred to the Customer.
  5. Waiver
    • No failure or delay by a party to exercise any right or remedy provided under these Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
  6. Rights and Remedies
    • Except as expressly provided in these Conditions, the rights and remedies provided under these Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
  7. 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.
    • Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in these Conditions.
  8. Variation
    • No variation of these Conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
  9. Severance
    • If any provision or part-provision of the Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
  10. No Partnership Or Agency
    • Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
    • Each party confirms it is acting on its own behalf and not for the benefit of any other person.
  11. 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. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 180 days, the party not affected may terminate the Contract by giving 30 days’ written notice to the affected party.
  12. Notices
    • Any notice or other communication required to be given under the Contract, shall be in writing and shall be delivered personally, or sent by pre-paid first-class post or recorded delivery or by commercial courier.
    • Any notice shall be deemed to have been duly received:
      • if delivered personally, when left at the address and for the contact referred to in this clause;
      • if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second business day after posting; or
      • if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
    • A notice required to be given under the Contract shall not be validly given if sent by e-mail.
    • The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
  13. Governing Law
    • The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Scotland.
  14. Jurisdiction
    • The parties irrevocably agree that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).