The definitions and rules of interpretation in this clause apply in this agreement.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges: the charges in respect of the Services set out in the Schedule, together with any charges arising under the terms of this agreement.
Confidential Information: all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:
(a) identified as confidential at the time of disclosure; or
(b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
Data Protection Laws: the Data Protection Act 1998, the General Data Protection Regulation (Regulation (EU) 2016/679) (GDPR) and any successor legislation, and the terms “data controller”, “data processor”, “Personal Data” and “Data Subject” shall have the meanings as under those acts.
Effective Date: the date of this agreement.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring 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.
Materials: the information, data or content provided to the Supplier by the Client from time to time for incorporation or use in the Services.
Schedule/s: the document produced by the Supplier setting out the Services, the Charges and the timetable within which the Supplier will implement the Services, and a copy of which is appended to these terms.
Service Terms and Conditions: the terms and conditions which are specific to the Services detailed in the Schedule (or project plan) to be provided by the Supplier to the Client.
Services: the IT services, together with any training and/or ancillary services, to be provided by the Supplier pursuant to these terms, and as more fully described in the Schedule.
1.2 Clause and schedule headings do not affect the interpretation of this agreement.
1.3 References to clauses and schedules are (unless otherwise provided) references to the clauses and schedules of this agreement.
1.4 If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedule, the provisions in the Schedule shall prevail.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.7 References to content includes any kind of text, information, image, audio or video material which can be incorporated in a website for access by a Visitor to that website.
2. THE SERVICES
2.1 In consideration of the Charges, the Supplier shall provide the Services in accordance with the Schedule/s.
3. CLIENT RESPONSIBILITIES
3.1 The Client acknowledges that the Supplier’s ability to provide the Services is dependent upon the full and timely co-operation of the Client (which the Client agrees to provide), as well as the accuracy and completeness of any Materials the Client provides to the Supplier.
3.2 The Client shall provide the Supplier with access to, and use of, all Materials reasonably required by the Supplier for the performance of its obligations under this agreement.
3.3 The Client shall be responsible (at its own cost) for preparing the relevant premises for the supply of the Services (where applicable), and provide in a timely manner such access to the Client’s premises and data, and such office accommodation and other facilities, as is requested by the Supplier for the provision of the Services.
4. MANAGEMENT OF SERVICES
4.1 Each party shall appoint a manager who shall:
(a) provide professional and prompt liaison with the other party; and
(b) have the necessary expertise and authority to commit the relevant party.
5. CHARGES AND PAYMENT,
5.1 The Charges for the Services shall be set out in the Service Terms and Conditions.
5.2 Unless otherwise agreed, the Supplier shall issue an invoice in respect of the Charges, and the Client shall pay in full, and in cleared funds, to the Supplier the Charges set out in such invoice within 30 days of the date of the invoice.
5.3 The Client hereby acknowledges and agrees upon entering into this agreement any Charges specified by the Supplier in the Schedule must be paid in a timely manner, and time for payment shall be of the essence of the Contract.
5.4 The Supplier reserves the right to review its prices for services which are charged on a time and materials basis on an annual basis, and any increases in costs to the Supplier in delivering the Services may be passed on to the Client by way of a reasonable increase in the relevant Charges.
5.5 If the Client fails to pay any sum properly due and payable under this agreement, the Supplier may charge interest on the overdue amount at the rate of 4% per annum above the base rate for the time being of the Bank of England accruing on a daily basis from the due date up to the date of actual payment, whether before or after judgement.
5.6 The Client hereby acknowledges and agrees that the Supplier shall have the right to suspend the Services in the event that the Client fails to pay any sum properly due and payable under this agreement by giving written notice to the Client.
5.7 All payments payable to the Supplier under this agreement shall become due immediately on termination of the agreement or any Schedule, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the agreement.
5.8 All amounts due under this agreement shall be paid by the Client to the Supplier in full without any set-off, counter claim, deduction or withholding (other than any deduction or withholding of tax as required by law). The Supplier may, without prejudice to any other rights it may have, set off any liability of the Client to the Supplier against any liability of the Supplier to the Client.
6. CHANGE CONTROL
6.1 Any request to change the scope of the Services shall be processed in accordance with the procedure set out in this clause.
6.2 The Supplier and the Client shall discuss any change to this agreement or the Schedule (Change) proposed by the other and such discussion shall result in either:
(a) a written request for a Change by the Client; or
(b) a written recommendation for a Change by the Supplier.
6.3 Such request or recommendation shall be confirmed in writing, together with any additional Charges and such Change shall be agreed between the parties.
7.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.
7.2 The Supplier shall perform the Services with reasonable care and skill.
7.3 If the Supplier breaches the warranty in clause 7.2, it shall be afforded the reasonable opportunity to investigate the failure of the provision of the Services and if necessary, repeat performance of the part of the relevant Services, as appropriate, which are found not to conform to the warranty.
7.4 The warranty in clause 7.2 is conditional upon:
(a) the Client giving written notice to the Supplier of any alleged breach of the warranty within 7 days of the date when the Client discovers or ought reasonably to have discovered the alleged breach; and
(b) the Client not having committed any breach of its obligations under the Agreement or the Schedule which has led or contributed to the breach of the warranty concerned.
7.5 This agreement and the relevant Schedule/s sets out the full extent of the Supplier’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
8. LIMITATION OF REMEDIES AND LIABILITY
8.1 Nothing in this agreement shall operate to exclude or limit either party’s liability for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability which cannot be excluded or limited under applicable law.
8.2 The Supplier shall not be liable under or in connection with this agreement or any Schedule for any:
(a) loss of revenue;
(b) loss of actual or anticipated profits;
(c) loss of contracts;
(d) loss of the use of money;
(e) loss of anticipated savings;
(f) loss of business;
(g) loss of opportunity;
(h) loss of goodwill;
(i) loss of reputation;
(j) loss of, damage to or corruption of data; or
(k) any indirect or consequential loss, in each case howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties and whether arising in or caused by breach of contract, tort (including negligence), breach of statutory duty or otherwise.
8.3 Subject to clause 8.1, each party’s maximum liability in respect of claims based on events in any calendar year arising out of or in connection with this agreement or any Schedule, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the amount of Charges paid or payable by the Client under this agreement.
8.4 The Supplier is supplying the Services based on an assessment made in good faith of the Client’s requirements as expressed in the information provided by the Client. The Supplier shall not be liable for any failure to provide or any defect in the Services to the extent that such failure or defect is caused by an omission, error or ambiguity in the expression of the Client’s requirements or in the Materials provided by the Client.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 All Intellectual Property Rights, but excluding the Materials, arising in connection with this agreement shall be the property of the Supplier, and the Supplier hereby grants the Client a non-exclusive licence of such Intellectual Property Rights for the purpose of receiving the Services. Such licence shall be granted and continue subject to payment of the Charges.
9.2 The Client grants to the Supplier, for the duration of this agreement, a non-exclusive royalty-free licence to use, operate, copy and modify the Client’s Intellectual Property rights for the purpose only of performing the Supplier’s obligations under this agreement.
9.3 The Client shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party.
9.4 The indemnity in clause 9.3 is subject to the following conditions:
(a) the Supplier promptly notifies the Client in writing of the claim;
(b) the Supplier makes no admissions or settlements without the Client ‘s prior written consent;
(c) the Supplier gives the Client all information and assistance that the Client may reasonably require; and
(d) the Supplier allows the Client complete control over the litigation and settlement of any action or claim.
9.5 The indemnity in clause 9.3 may not be invoked to the extent that the action or claim arises out of the Client’s compliance with any designs, specifications or instructions of the Supplier.
10. DATA PROTECTION
10.1 The Client shall own all rights, title and interest in and to all of its Personal Data, and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Personal Data used in connection with the Services.
10.2 The Client agrees that the Supplier may access and disclose Personal Data as required by applicable Data Protection Laws, as permitted by the Client and as is required to provide the Services.
10.3 If the Supplier processes any personal data on the Client’s behalf when performing its obligations under this agreement, the parties record their intention that the Client shall be the data controller and the Supplier shall be a data processor and in any such case:
10.3.1 the Client shall ensure that the Client is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Client’s behalf;
10.3.2 the Client shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer if necessary under any applicable Data Protection Laws;
10.3.3 the Supplier shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Client from time to time;
10.3.4 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage;
10.3.5 the Supplier undertakes to notify the Client without undue delay of any breach of security and/or failure to comply with any data protection requirements which could give rise to enforcement measures and/or a complaint against the Supplier; and
10.3.6 the Supplier will cease all processing of personal data and will return the data to the Client in the format specified upon request, or destroy such personal data as the Client may instruct in writing, upon termination of this Agreement.
10.3.7 The Supplier shall not disclose or transfer the Personal Data to any third party unless necessary for the provision of the Services and if so, the Supplier shall obtain the prior written consent of the Contractor (save where such disclosure or transfer is specifically authorised under this agreement).
11. TERM AND TERMINATION
11.1 This agreement shall commence on the Effective Date and shall continue, unless terminated earlier in accordance with clause 11.2.
11.2 Without affecting any other right or remedy available to it, the Supplier may terminate this agreement with immediate effect by giving written notice to the Client if:
(a) the Client fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
(b) the Client commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
(c) the Client 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(d) the Client commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Client (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Client with one or more other companies or the solvent reconstruction of the Client;
(f) 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 Client (being a company);
(g) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the Client;
(i) a creditor or encumbrancer of the Client attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Client’s assets and such attachment or process is not discharged within 14 days;
(j) any event occurs, or proceeding is taken, with respect to the Client in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.2(c) to clause 11.2(i) (inclusive); or
(k) the Client suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
11.3 Without affecting any other right or remedy available to it, the Supplier or Client may terminate this agreement or any Schedule on giving not less than three months’ written notice to the other, in which case:
(a) Such termination shall not affect any other Schedules which are in force as at the date of termination;
(b) Termination of this agreement shall terminate all Schedules;
(c) Termination of a Schedule shall not terminate any other Schedule or this agreement.
11.4 On termination of this agreement by the Supplier pursuant to clause 11.2, all licences granted by the Supplier under this agreement shall terminate immediately.
11.5 On expiry or termination of this agreement otherwise than on termination by the Supplier pursuant to clause 11.2, the Supplier shall promptly return all Materials to the Client.
11.6 On expiry or termination of this agreement, all provisions of this agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect. The termination of this agreement, shall be without prejudice to the rights of the parties accrued up to the date of such termination.
12. FORCE MAJEURE
12.1 Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control (including but not limited to any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war) (“Force Majeure”). 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 three months, the party not affected may terminate this agreement by giving 7 days’ written notice to the affected party.
12.2 No party shall in such circumstances be liable to the other for any losses suffered by the other party by reason of failure or delay in the performance of their obligations under this agreement or a Schedule which is due to Force Majeure. Notwithstanding this, each party shall use reasonable endeavours to continue to perform, or resume performance of, such obligations for the duration of such Force Majeure.
13.1 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
13.2 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
13.3 The obligations set out in this clause 13 shall not apply to Confidential Information which the receiving party can demonstrate:
(a) is or has become publicly known other than through breach of this clause 13; or
(b) was in possession of the receiving party prior to disclosure by the other party; or
(c) was received by the receiving party from an independent third party who has full right of disclosure; or
(d) was independently developed by the receiving party; or
(e) was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.
13.4 The obligations of confidentiality in this clause 13 shall not be affected by the expiry or termination of this agreement.
14.1 Neither party shall (without the prior written consent of the other party) at any time until the expiry of 12 months after the date of termination of this Agreement or a Schedule utilise the services of, solicitor or endeavour to entice away from or discourage from being employed by the other party any employee of the other party whose duties have included the provision or receipt of the Services under this Agreement.
14.2 Each party agrees that if it is in breach of clause 14.1, damages may not be an adequate remedy and the party not in breach may wish to apply for an injunction or take other action. Nevertheless, each party shall, if in breach of clause 14.1, pay on demand to the other party (as is agreed to be a genuine pre-estimate of the loss likely to be suffered by the other part as a result) a sum representing the gross amount paid to employee concerned during the last 3 months immediately prior to such solicitation plus the costs incurred by the other party in recruiting a suitable replacement.
15.1 A notice given under this agreement:
(a) shall be sent for the attention of the person, and to the address or e-mail address given in this clause 14 (or such other person, address or e-mail address as the receiving party may have notified to the other, such notice to take effect five days from the notice being received); and
(b) shall be:
(i) delivered personally; or
(ii) sent by e-mail; or
(iii) sent by pre-paid post, recorded delivery or registered post; or
(iv) (if the notice is to be served or posted outside the country from which it is sent) sent by registered airmail.
15.2 The addresses for service of notice shall be as set out at the start of this agreement, unless otherwise notified by either party from time to time.
15.3 A notice is deemed to have been received:
(a) if delivered personally, at the time of delivery; or
(b) in the case of e-mail, at the time of transmission; or
(c) in the case of pre-paid first class post, recorded delivery or registered post, 48 hours from the date of posting; or
(d) if deemed receipt under the previous paragraphs of this clause 15.3 is not within business hours (meaning 9.00 am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt), when business next starts in the place of receipt.
15.4 To prove service, it is sufficient to prove that the notice was transmitted to the e-mail address of the relevant party or, in the case of post, that the envelope containing the notice was properly addressed and posted.
16.1 The Client may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights or obligations under this agreement without the prior written consent of the Supplier.
16.2 The Supplier may assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights or obligations under this agreement.
17. ENTIRE AGREEMENT
17.1 These Standard Terms and Conditions, together with the applicable Service Terms and Conditions, constitute 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.
17.2 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 this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
18. THIRD PARTY RIGHTS
18.1 A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
18.2 No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
21.1 If any provision or part-provision of this agreement is or becomes 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 a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
21.2 If any provision or part-provision of this agreement 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.
22. GOVERNING LAW
This agreement and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the date stated at the beginning of it.