GENERAL TERMS:
1 Appointment and scope
1.1 The Client appoints the Supplier to provide the Services during the Term and the Supplier accepts the appointment.
2 Application of these General Terms
2.1 These General Terms form part of the Contract between the Supplier and the Client. The Contract, including these General Terms, supersedes any previously issued terms of purchase or supply. No terms referred to, delivered with, or contained in any order confirmation or other document from the Client, will form part of the Contract unless the Supplier agrees otherwise in writing.
3 Services
3.1 The Supplier will provide the Services with reasonable care and skill and in accordance with the Client’s reasonable and lawful instructions.
3.2 The Supplier will use reasonable endeavours to comply with any timeframe or deadline proposed by the Client for the performance of the Services or any element of them but cannot and does not guarantee that it will be able to do so.
4 Client’s co-operation
4.1 The Client must co-operate with the Supplier in all matters relating to the Services, including obtaining and providing promptly, such information, material or approvals as the Supplier may reasonably request or require and ensure that it is accurate and complete in all material respects (updating it where necessary).
4.2 The Client must, to the extent possible, make any location for the performance of the Services accessible to the Supplier as may be necessary for the Supplier to perform the Services and otherwise comply with its obligations under the Contract.
4.3 The Client must obtain and maintain all necessary licences, permits and consents required to enable the Supplier to perform the Services and otherwise comply with its obligations under the Contract.
4.4 The Client must ensure that all equipment, materials or other items provided to the Supplier for the provision of the Services are suitable for the performance of the Services, in good condition and in good working order.
4.5 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client (or any other party under the Client’s direction or control), the Supplier will:
4.5.1 not be liable for any costs, Fees or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay;
4.5.2 be entitled to payment of the Fees and Expenses (and any other agreed costs) despite any such prevention or delay; and
4.5.3 be entitled to recover any additional costs, fees or losses it sustains or incurs that arise directly or indirectly from such prevention or delay.
5 Fees and payment
5.1 The Client will pay the Supplier the Fees and Expenses in accordance with the terms set out in the Key Terms (plus any applicable VAT).
5.2 Unless otherwise stated in the Key Terms, the Supplier’s invoices are payable within 30 days of receipt by the Client.
5.3 If the Client fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier’s rights and remedies the Supplier may suspend provision of the Services and/or may charge statutory interest and compensation in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
5.4 The Client will pay all amounts due to the Supplier under the Contract in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5.5 The Client must pay the Supplier for any additional services provided that are not specified in the Contract in accordance with the Supplier’s then current, applicable rates in effect at the time of performance or such other rates as may be agreed between the parties.
5.6 The Client must pay the Supplier a) any reasonable incidental expenses including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses; b) the cost of services provided by third parties and required by the Supplier for the performance of the Services; and c) the cost of any goods or materials required for the provision of the Services.
6 Limitation of liability and indemnity
6.1 The extent of the Supplier’s liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) is as set out in this clause 6.
6.2 Subject to clauses 6.6, the total aggregate liability of the Supplier, howsoever arising under or in connection with the Contract, will not exceed the total Fees paid to the Supplier by the Client in the 6 months immediately prior to the liability arising and in relation to the specific element of the Services giving rise to the liability.
6.3 Subject to clause 6.6, the Supplier will not be liable for any consequential, indirect or special losses.
6.4 Subject to clause 6.6, the Supplier will not be liable for any of the following (whether direct or indirect): a) loss of profit; b) loss of revenue; c) loss or corruption of data; d) loss or corruption of software or systems; e) loss or damage to equipment; f) loss of use; g) loss of production; h) loss of contract; i) loss of commercial opportunity; j) loss of savings, discount or rebate (whether actual or anticipated); k) harm to reputation or loss of goodwill; and/or l) wasted expenditure.
6.5 Except as expressly stated in the Contract, and subject to clause 6.6, all warranties and conditions whether express or implied by statute, common law or otherwise are excluded to the maximum extent permitted by law.
6.6 Notwithstanding any other provision of the Contract, the Supplier’s liability will not be limited in any way in respect of the following:
6.6.1 death or personal injury caused by negligence;
6.6.2 fraud or fraudulent misrepresentation;
6.6.3 any other losses which cannot be excluded or limited by applicable law.
6.7 The Client will indemnify on demand the Supplier against all damages, costs, claims and expenses suffered by the Supplier arising from any loss or damage to any equipment (including that belonging to third parties) caused by the Client or any person acting for or on its behalf.
7 Intellectual Property
7.1 Each party (and/or its licensors as the case may be) will retain all Intellectual Property Rights in its Background Intellectual Property.
7.2 Subject to the provisions of this clause 7, the Supplier will retain all Intellectual Property Rights in the Foreground Intellectual Property.
7.3 The Supplier grants to the Client with effect from the Effective Date a non-exclusive and non-transferable licence to use during the Term such of its Background Intellectual Property Rights and the Foreground Intellectual Property Rights that it makes available to the Client as part of its delivery of the Services for the Client to use for its own internal business purposes but for no other purpose.
7.4 The Client grants to the Supplier with effect from the Effective Date a non-exclusive licence to use during the Term such of its Background Intellectual Property Rights as may be reasonably necessary for the Supplier to perform the Services.
7.5 For the purposes of this clause 7:
7.5.1 “Intellectual Property Rights” means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, the right to sue for passing off, database rights and rights in data, semiconductor chip topography rights, utility models, domain names and all similar rights and, in each case: a) whether registered or not; b) including any applications to protect or register such rights; c) including all renewals and extensions of such rights or applications; d) whether vested, contingent or future; and e) wherever existing;
7.5.2 “Background Intellectual Property Rights” means any and all Intellectual Property Rights that are not Foreground Intellectual Property, owned or controlled by the relevant party or licensed to the relevant party prior to or outside the scope of the Contract, and in any event generated without reliance on any Foreground Intellectual Property; and
7.5.3 “Foreground Intellectual Property Rights” means all Intellectual Property Rights created by the Supplier for the exclusive benefit of the Client in the delivery of the Services under the Contract.
8 Data Protection
8.1 Each party will comply with its obligations under applicable data protection legislation (ie the United Kingdom General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018 (DPA 2018)).
8.2 Where the Supplier processes any personal data as defined under applicable data protection legislation on behalf of the Client in connection with the provision of the Services, the Supplier will:
8.2.1 process that personal data only in accordance with the written instructions of the Client;
8.2.2 keep the personal data confidential;
8.2.3 comply with the Client’s reasonable and lawful instructions with respect to processing the personal data;
8.2.4 assist the Client in responding to any data subject access request and to ensure compliance with its obligations under applicable data protection legislation with respect to security, breach notifications, privacy impact assessments, and consultations with supervisory authorities or regulators;
8.2.5 notify the Client without undue delay on becoming aware of a personal data breach or communication concerning compliance with data protection legislation;
8.2.6 at the Client’s direction, delete or return personal data and any copies to the Client on termination of the Contract unless permitted to retain such data under applicable law.
8.3 The Supplier will ensure that it has in place appropriate technical or organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of or damage to personal data.
8.4 The parties will enter into a separate data processing agreement or such other documentation as may be necessary to comply with their obligations under applicable data protection legislation.
9 Solicitation of Supplier personnel
9.1 If at any time during the Term (or within 6 months of its termination or expiry), the Client engages in any capacity (whether as an employee, worker, agent, consultant, subcontractor or otherwise) any individual who is working for (or has within the previous 6 months worked for) the Supplier in any capacity (whether as an employee, worker, agent, consultant, subcontractor or otherwise), the Client will:
9.1.1 notify the Supplier in writing of that fact within 7 days of the engagement and provide the Supplier with such information as the Supplier may reasonably request in respect of the engagement; and
9.1.2 pay to the Supplier within 7 days of receipt of the Supplier’s invoice a sum equivalent to 35% of the relevant individual’s gross annual remuneration payable by the Supplier to the relevant individual in the previous 12 months (or where a contractor, 35% of the sums paid to the contractor or their professional service company by the Supplier in the previous 12 months); and ii) the recruitment fees charged to the Supplier (if any) for any replacement for the relevant individual.
10 Confidentiality
10.1 Each party will treat as confidential all Confidential Information of the other and will not use or divulge such Confidential Information to any person except as permitted by the Contract (or as permitted by law).
10.2 Each party may disclose the other party’s Confidential Information to such of its employees, officers, representatives, contractors, sub-contractors, agents or advisers who need to know such information for the purposes of:
10.2.1 exercising the party’s rights or carrying out its obligations under or in connection with the Contract; or
10.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3 Each party will ensure that such recipients comply with this clause 10.
10.4 For the purposes of this clause, “Confidential Information” means any information that is confidential in nature or which is known to be or which a party could reasonably be expected to know is confidential concerning a party and any associated parties including any details of its business, affairs, customers, clients, suppliers, partners, plans, proposals or strategy or any similar information.
11.1 After the end of the Initial Term (as defined in the Key Terms), either party may terminate the Contract for any reason on giving the other party 60 days’ notice in writing.
11.2 Either party may terminate the Contract with immediate effect by giving written notice to the other party if:
11.2.1 the other party commits a material breach of the Contract (and where remediable fails to remedy that breach within 7 days of being asked to do so);
11.2.2 the other party repeatedly breaches any of the terms of the Contract in such a manner 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;
11.2.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
11.2.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s reasonable opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
11.3 The Supplier may terminate the Contract with immediate effect by giving written notice to the Client if:
11.3.1 the Client fails to pay any amount due under the Contract on the due date for payment; or
11.3.2 there is a change of control of the Client; or
11.3.3 the Client acts in any way which the Supplier reasonably considers to be prejudicial to its legitimate business interests including the Client acting in any way which may harm the Supplier’s reputation.
11.4 On termination or expiry of the Contract for whatever reason:
11.4.1 the Client will immediately pay to the Supplier all amounts then due and where any invoices for sums have not been raised by the Supplier, immediately pay such invoices on receipt;
11.4.2 each party will within 28 days and at the other party’s election, return or destroy, all Confidential Information and property of the other party then in its possession or control (including in the case of the Client returning any proprietary tools or other data or materials of the Supplier) excluding anything either party is required or permitted to retain under applicable law;
11.4.3 any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract will remain in full force and effect; and
11.4.4 termination or expiry of the Contract will not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
12 General
12.1 Monitoring: The Supplier may at any time and without notice, examine, monitor or record, how the Client uses the Services and the nature of the data/information that the Client transmits or receives via the Services where such examination, monitoring or recording is reasonably necessary or desirable to: (a) safeguard the integrity, operation and/or functionality of its network or a third party’s network; (b) co-operate or comply with any investigation or inquiry by a competent authority, or any police, judicial, regulatory or governmental order, notice, directive or request; or (c) substantiate or disprove any reasonable suspicion the Supplier may have in respect of any breach or potential breach of the Contract.
12.2 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.
12.3 Variation: If the Client wishes to amend any aspect of the Services, it must notify the Supplier in writing as soon as possible. The Supplier may, at its sole discretion, make all, some, or none of the requested changes. The Client must pay all costs and expenses in respect of the changes and the revised Services. If, due to circumstances beyond its reasonable control, the Supplier has to make any change to the Services or how they are provided, it will notify the Client promptly. The Supplier will use reasonable endeavours to keep any such changes to a minimum. No variation of the Contract will be effective unless it is in writing and signed by the parties.
12.4 Waiver: No failure or delay by a party to exercise any right or remedy provided under the Contract or by law will constitute a waiver of that or any other right or remedy, nor will 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 will prevent or restrict the further exercise of that or any other right or remedy.
12.5 Severance: If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it will 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 will be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause will not affect the validity and enforceability of the rest of the Contract.
12.6 Assignment and subcontracting: The Supplier may assign any or all of its rights under the Contract and may sub-contract or delegate any or all of its obligations under the Contract. The Client may not assign, sub-contract or encumber any right or obligation under the Contract, in whole or in part, without the Supplier’s prior written consent (such consent not to be unreasonably withheld or delayed).
12.7 Force majeure: Neither party will 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 results from events, circumstances or causes beyond its reasonable control.
12.8 Notices: Any notice or other communication given to a party under or in connection with the Contract must be sent by email to the email address for the relevant party set out in the Key Terms. The provisions of this clause do not apply to the service of any proceedings or other documents in any legal action or process.
12.9 Third party rights: No one other than a party to the Contract has any right to enforce any of its terms.
12.10 Counterparts: The Contract may be executed in any number of counterparts, each of which will constitute a duplicate original, but all the counterparts will together constitute the one agreement.
12.11 Announcements: Neither party will make any public announcement or other public disclosure concerning the Services without the other party’s prior written approval (not to be unreasonably withheld or delayed).
12.12 Governing law and jurisdiction: 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, will be governed by, and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales 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.
13 Contract interpretation
13.1 In the Contract unless the context requires otherwise:
13.1.1 a clause, schedule or other heading in the Contract is included for convenience only and will have no effect on the interpretation of the Contract;
13.1.2 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions will be construed as illustrative only and will not limit the sense of any word, phrase, term, definition or description preceding those words;
13.1.3 words in the singular include the plural and vice versa.